1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GERALD JAY WILSON, Case No. 1:19-cv-00526-BAM (PC) 10 Plaintiff, SCREENING ORDER GRANTING LEAVE TO FILE AN AMENDED COMPLAINT 11 v. ORDER DENYING, WITHOUT PREJUDICE, 12 A.R. PEREZ, et al., PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 13 Defendants. [ECF No. 1] 14 THIRTY-DAY DEADLINE 15 16 17 Plaintiff Gerald Jay Wilson (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint is currently before the Court for 19 screening. (ECF No. 1.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 26 1915(e)(2)(B)(ii). 27 A complaint must contain “a short and plain statement of the claim showing that the 28 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 4 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 5 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 9 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 10 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 11 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently housed at Kern Valley State Prison. Plaintiff alleges that the events at 14 issue took place at the Substance Abuse Treatment Facility in Corcoran (“SATF”). Plaintiff 15 names the following defendants: (1) A.R. Perez, Correctional Sergeant; (2) J. Almjuez, 16 Administrative Segregation Property Officer; (3) M. Bremner, appeals interview officer; (4) M. 17 Rivera, Correctional Sergeant; (5) Garcia, correctional officer, (6) L.C. Hense, Chief Deputy 18 Warden at Corcoran State Prison, (7) G. Jamie, Chief Deputy Warden at Kern Valley State 19 Prison. 20 In May 2016, Plaintiff was transferred to SATF with eight boxes of personal property. 21 Plaintiff’s property would exceed the six cubic feet of legal property permitted, but he was 22 allowed to keep one cubic feet of legal property, because the case was active, and would be 23 allowed to store the remaining legal items at SATF Receiving and Release (R&R). On November 24 29, 2016, Plaintiff was placed in Administrative Segregation at Corcoran for his safety. Plaintiff 25 alleges that staff at SATF R&R should have transferred Plaintiff’s property to Corcoran. On 26 December 11, 2016, Defendant Almjuez issued some of Plaintiff’s personal property, but some 27 personal property was missing. Defendant Almjuez told Plaintiff that Defendant Almjuez did not 28 have any other personal property for Plaintiff. Plaintiff told Defendant Almjuez that he needed 1 the legal property for appeals pending before the Ninth Circuit Court of Appeals. Defendant 2 Almjuez said he would check on the property, but never got back to Plaintiff about his property. 3 Plaintiff let the appeals court know that he was having property difficulties and requested 4 an extension of time. Plaintiff also filed a grievance with no response. Plaintiff had to proceed 5 on appeal without pertinent documents to cite to the Court which harmed Plaintiff. Defendants 6 deprived Plaintiff of the pertinent legal items for two years with the intention to deny access to 7 courts. 8 Defendant Garcia had the responsibility to transfer Plaintiff’s legal documents that were 9 stored at SATF R&R to Corcoran. Defendant Sergeant Perez had the responsibility to answer the 10 Plaintiff’s grievance concerning Plaintiff’s legal documents stored at SATF. Sergeant Rivera had 11 the responsibility to issue Plaintiff’s three boxes of legal document when the items were supposed 12 to be transferred to Kern Valley State Prison on or about May 25, 2017. 13 Plaintiff alleges the Chief Deputy Warden G. Jaime had the responsibility to investigate 14 the first level finding and not interfere with Plaintiff’s right to access to the courts. Defendant 15 Sergeant M. Bremner put forth misleading statements to interfere with Plaintiff right to access to 16 the Court. 17 Plaintiff sues each defendant in their personal and official capacities. Plaintiff seeks 18 compensatory and punitive damages. Plaintiff seeks injunctive relief for retaliation by each 19 Defendant during the pendency of this action. 20 III. Discussion 21 Plaintiff’s complaint fails to state a claim. As Plaintiff is proceeding pro se, he will be 22 given an opportunity to amend his complaint to cure the identified deficiencies to the extent he is 23 able to do so in good faith. To assist Plaintiff, the Court provides the relevant pleading and legal 24 standards that appear applicable to his claims. 25 A. Linkage Requirement 26 The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law]... subjects, or causes to be 27 subjected, any citizen of the United States... to the deprivation of any rights, privileges, 28 or immunities secured by the Constitution...shall be liable to the party injured in an 1 action at law, suit in equity, or other proper proceeding for redress. 2 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link 3 between the actions of the defendants and the deprivation alleged to have been suffered by 4 Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed. 2d 611 5 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L.Ed. 2d 561 (1976). The Ninth Circuit 6 has held that “[a] person ‘subjects another to the deprivation of a constitutional right, within the 7 meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or 8 omits to perform an act which he is legally required to do that causes the deprivation of which 9 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 10 Here, Plaintiff’s complaint fails to adequately link many of the Defendants to actions.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GERALD JAY WILSON, Case No. 1:19-cv-00526-BAM (PC) 10 Plaintiff, SCREENING ORDER GRANTING LEAVE TO FILE AN AMENDED COMPLAINT 11 v. ORDER DENYING, WITHOUT PREJUDICE, 12 A.R. PEREZ, et al., PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 13 Defendants. [ECF No. 1] 14 THIRTY-DAY DEADLINE 15 16 17 Plaintiff Gerald Jay Wilson (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint is currently before the Court for 19 screening. (ECF No. 1.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 26 1915(e)(2)(B)(ii). 27 A complaint must contain “a short and plain statement of the claim showing that the 28 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 4 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 5 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 9 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 10 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 11 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently housed at Kern Valley State Prison. Plaintiff alleges that the events at 14 issue took place at the Substance Abuse Treatment Facility in Corcoran (“SATF”). Plaintiff 15 names the following defendants: (1) A.R. Perez, Correctional Sergeant; (2) J. Almjuez, 16 Administrative Segregation Property Officer; (3) M. Bremner, appeals interview officer; (4) M. 17 Rivera, Correctional Sergeant; (5) Garcia, correctional officer, (6) L.C. Hense, Chief Deputy 18 Warden at Corcoran State Prison, (7) G. Jamie, Chief Deputy Warden at Kern Valley State 19 Prison. 20 In May 2016, Plaintiff was transferred to SATF with eight boxes of personal property. 21 Plaintiff’s property would exceed the six cubic feet of legal property permitted, but he was 22 allowed to keep one cubic feet of legal property, because the case was active, and would be 23 allowed to store the remaining legal items at SATF Receiving and Release (R&R). On November 24 29, 2016, Plaintiff was placed in Administrative Segregation at Corcoran for his safety. Plaintiff 25 alleges that staff at SATF R&R should have transferred Plaintiff’s property to Corcoran. On 26 December 11, 2016, Defendant Almjuez issued some of Plaintiff’s personal property, but some 27 personal property was missing. Defendant Almjuez told Plaintiff that Defendant Almjuez did not 28 have any other personal property for Plaintiff. Plaintiff told Defendant Almjuez that he needed 1 the legal property for appeals pending before the Ninth Circuit Court of Appeals. Defendant 2 Almjuez said he would check on the property, but never got back to Plaintiff about his property. 3 Plaintiff let the appeals court know that he was having property difficulties and requested 4 an extension of time. Plaintiff also filed a grievance with no response. Plaintiff had to proceed 5 on appeal without pertinent documents to cite to the Court which harmed Plaintiff. Defendants 6 deprived Plaintiff of the pertinent legal items for two years with the intention to deny access to 7 courts. 8 Defendant Garcia had the responsibility to transfer Plaintiff’s legal documents that were 9 stored at SATF R&R to Corcoran. Defendant Sergeant Perez had the responsibility to answer the 10 Plaintiff’s grievance concerning Plaintiff’s legal documents stored at SATF. Sergeant Rivera had 11 the responsibility to issue Plaintiff’s three boxes of legal document when the items were supposed 12 to be transferred to Kern Valley State Prison on or about May 25, 2017. 13 Plaintiff alleges the Chief Deputy Warden G. Jaime had the responsibility to investigate 14 the first level finding and not interfere with Plaintiff’s right to access to the courts. Defendant 15 Sergeant M. Bremner put forth misleading statements to interfere with Plaintiff right to access to 16 the Court. 17 Plaintiff sues each defendant in their personal and official capacities. Plaintiff seeks 18 compensatory and punitive damages. Plaintiff seeks injunctive relief for retaliation by each 19 Defendant during the pendency of this action. 20 III. Discussion 21 Plaintiff’s complaint fails to state a claim. As Plaintiff is proceeding pro se, he will be 22 given an opportunity to amend his complaint to cure the identified deficiencies to the extent he is 23 able to do so in good faith. To assist Plaintiff, the Court provides the relevant pleading and legal 24 standards that appear applicable to his claims. 25 A. Linkage Requirement 26 The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law]... subjects, or causes to be 27 subjected, any citizen of the United States... to the deprivation of any rights, privileges, 28 or immunities secured by the Constitution...shall be liable to the party injured in an 1 action at law, suit in equity, or other proper proceeding for redress. 2 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link 3 between the actions of the defendants and the deprivation alleged to have been suffered by 4 Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed. 2d 611 5 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L.Ed. 2d 561 (1976). The Ninth Circuit 6 has held that “[a] person ‘subjects another to the deprivation of a constitutional right, within the 7 meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or 8 omits to perform an act which he is legally required to do that causes the deprivation of which 9 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 10 Here, Plaintiff’s complaint fails to adequately link many of the Defendants to actions. 11 Plaintiff may not lump all defendants into wrongful conduct. Plaintiff’s conclusory statement that 12 all defendants had knowledge and a direct link to the wrongful conduct is not sufficient to state a 13 cognizable claim. Plaintiff’s allegations must demonstrate that each individual defendant 14 personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th 15 Cir. 2002). 16 B. Federal Rules of Civil Procedure 18 and 20 17 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 18 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 19 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long 20 as (1) the claim arises out of the same transaction or occurrence, or series of transactions and 21 occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); 22 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement 23 refers to similarity in the factual background of a claim. Id. at 1349. Only if the defendants are 24 properly joined under Rule 20(a) will the Court review the other claims to determine if they may 25 be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. 26 Plaintiff may not raise different claims against different Defendants in a single action. For 27 instance, Plaintiff may not, in a single case, assert a claim against Defendant Jamie and Rivera, 28 for conduct occurring at one institution, Kern Valley State Prison in May 2017, while 1 simultaneously asserting an unrelated claim regarding denial of his property transfer from SATF 2 to Corcoran in 2016. Unrelated claims involving multiple defendants at different institutions 3 belong in different suits. In any amended complaint, Plaintiff may pursue only properly joined 4 claims. 5 C. Supervisory Liability 6 Supervisory personnel may not be held liable under section 1983 for the actions of 7 subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 8 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 9 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 10 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the 11 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 12 wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow v. 13 McDaniel, 681 F.3d 978, 989 (9th Cir. 2012)) (internal quotation marks omitted); accord Lemire, 14 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory liability 15 exists even without overt personal participation in the offensive act if supervisory officials 16 implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is 17 the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 18 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). 19 Plaintiff has not adequately alleged that Chief Deputy Warden Hense or Chief Deputy 20 Warden Jamie, or any other supervisor, were personally involved in a violation of his rights. 21 Plaintiff alleges that the sergeants and the Chief Deputy Wardens had certain responsibilities 22 related to his property which they did not perform. However, Plaintiff has failed to adequately 23 allege that the Deputy Wardens (or any other supervisory defendant) participated in or directed 24 any constitutional violation or that any Defendant implemented a policy so deficient that it was 25 the moving force of any constitutional violation. Liability may not be imposed on supervisory 26 personnel for the actions of their employees under a theory of respondeat superior. Plaintiff’s 27 conclusory allegations that these individuals are liable for failure to investigate, or based on 28 review of his administrative appeal or based on a defendant’s general responsibilities are not 1 sufficient to state a cognizable claim. 2 D. Access to the Courts 3 Plaintiff has a constitutional right of access to the courts, and prison officials may not 4 actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 5 2001) overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 6 2015). The right of access to the courts, however, is limited to non-frivolous direct criminal 7 appeals, habeas corpus proceedings, and § 1983 actions. Lewis v. Casey, 518 U.S. 343, 354–55 8 (1996). 9 In order to frame a claim of a denial of the right to access the courts, a prisoner must 10 allege facts showing that he has suffered “actual injury,” a jurisdictional requirement derived 11 from the standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with 12 respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to 13 present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations omitted); see also 14 Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir. 2008) (noting that “[f]ailure to show that a 15 ‘non-frivolous legal claim had been frustrated’ is fatal” to a claim for denial of access to legal 16 materials) (quoting Lewis, 518 U.S. at 353 & 353 n. 4). 17 A prisoner must allege the denial of the necessary tools to litigate a non-frivolous claim 18 attacking a conviction, sentence, or conditions of confinement. Christopher v. Harbury, 536 U.S. 19 403, 415 (2002); Lewis, 518 U.S. at 353 & n.3. Plaintiff need not show that he would have been 20 successful on the merits of his claims, but only that they were not frivolous. Allen v. Sakai, 48 21 F.3d 1082, 1085 & n.12 (9th Cir. 1994). A claim “is frivolous where it lacks an arguable basis 22 either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To properly plead a 23 denial of access to the courts claim, “the complaint should state the underlying claim in 24 accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently 25 pursued, and a like plain statement should describe any remedy available under the access claim 26 and presently unique to it.” Christopher v. Harbury, 536 U.S. 403, 417-18 (2002) (footnote 27 omitted). 28 Claims for denial of access to the courts may arise from the frustration or hindrance of “a 1 litigating opportunity yet to be gained” (forward-looking access claim) or from the loss of a 2 meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 3 U.S. 403, 412-15 (2002). For backward-looking claims, plaintiff “must show: 1) the loss of a 4 ‘nonfrivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the litigation; and 3) 5 a remedy that may be awarded as recompense but that is not otherwise available in a future suit.” 6 Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher, 536 U.S. at 413-14). 7 In this case, Plaintiff fails to state a cognizable claim. Plaintiff alleges he had Ninth 8 Circuit appeals pending, but fails to state facts sufficient for the Court to determine whether the 9 appeals were nonfrivolous and also fails to state what happened in the cases. Plaintiff alleges he 10 was harmed, but his conclusory statement is insufficient to support a claim. In addition, as noted 11 above, Plaintiff must link each defendant to conduct which Plaintiff alleges violated his 12 constitutional rights. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (backward-looking 13 denial of access claim must show loss of a non-frivolous claim, official acts frustrating the 14 litigation, and a remedy that may be awarded which is not available in a future suit). Plaintiff will 15 be granted leave to amend this claim. 16 E. Grievance Procedure 17 Insofar as Plaintiff complains about the grievance procedure or the processing of his 18 appeals, he does not state a cognizable claim. Plaintiff cannot pursue any claims against prison 19 personnel based solely on the processing and review of inmate appeals. The existence of an 20 inmate appeals process does not create a protected liberty interest upon which Plaintiff may base 21 a claim that he was denied a particular result or that the appeals process was deficient. Ramirez v. 22 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (Prisoners do not have a “separate constitutional 23 entitlement to a specific prison grievance procedure.”) (citation omitted), cert. denied, 541 U.S. 24 1063 (2004); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 25 F. Official Capacity 26 To the extent Plaintiff is attempting to pursue damages claims against the named 27 Defendants in their official capacities, he may not do so. “The Eleventh Amendment bars suits for 28 money damages in federal court against a state, its agencies, and state officials in their official 1 capacities.” Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations 2 omitted). However, the Eleventh Amendment does not bar suits seeking damages against state 3 officials in their personal capacities, Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 4 F.3d 483, 491 (9th Cir. 2003), or suits for injunctive relief brought against state officials in their 5 official capacities, Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, 6 Plaintiff may only proceed against Defendants in their individual capacities for monetary 7 damages. 8 G. Declaratory Relief 9 In addition to damages, Plaintiff seeks declaratory relief, but because his claims for 10 damages necessarily entail a determination whether his rights were violated, his separate request 11 for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 12 (9th Cir. 2005). Therefore, Plaintiff's claim for declaratory relief should be dismissed. 13 H. Property 14 Plaintiff appears to seek to assert a claim based on the deprivation of personal property. 15 Plaintiff has no cause of action under 42 U.S.C. § 1983 for an unauthorized deprivation of his 16 personal property, whether intentional or negligent, by a state employee, since a meaningful state 17 post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). 18 California law provides an adequate post-deprivation remedy for any property deprivations. 19 Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). 20 I. Injunctive Relief 21 Insofar as Plaintiff seeks injunctive relief against prison officials, any such request is now 22 moot. Plaintiff is no longer housed at the California Substance Abuse Treatment Facility or 23 Corcoran, where he alleges the incidents at issue occurred, and where the prison officials are 24 employed. Therefore, any injunctive relief against officials at the California Substance Abuse 25 Treatment Facility or Corcoran is moot. See Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th 26 Cir. 2007) (prisoner’s claims for injunctive relief generally become moot upon transfer) (citing 27 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding claims for injunctive 28 relief “relating to [a prison’s] policies are moot” when the prisoner has been moved and “he has 1 demonstrated no reasonable expectation of returning to [the prison]”)). 2 J. Appointment of Counsel 3 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 4 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 5 n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 6 U.S.C. §1915(e)(1), Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 7 (1989). However, in certain exceptional circumstances the court may request the voluntary 8 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a 9 reasonable method of securing and compensating counsel, the court will seek volunteer counsel 10 only in the most serious and exceptional cases. In determining whether “exceptional 11 circumstances exist, a district court must evaluate both the likelihood of success on the merits 12 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 13 legal issues involved.” Id. (internal quotation marks and citations omitted). 14 In this case, the Court does not find the required exceptional circumstances for the 15 appointment of counsel. Even if it is assumed that Plaintiff is not well versed in the law and that 16 he has made serious allegations which, if proved, would entitle him to relief, his case is not 17 exceptional. The Court is faced with similar cases filed by pro se litigants almost daily. 18 Furthermore, at this stage in the proceedings, the Court cannot make a determination that Plaintiff 19 is likely to succeed on the merits. As discussed in this order, the Court has not yet found that 20 Plaintiff proceeds upon a cognizable claim. 21 For these reasons, Plaintiff’s request for the appointment of counsel will be denied, 22 without prejudice. 23 IV. Conclusion 24 As discussed above, the Court finds deficiencies in Plaintiff’s complaint and that he has 25 not stated a cognizable claim for relief. Plaintiff will be granted leave to amend to attempt to cure 26 the identified deficiencies, to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 27 1122, 1130 (9th Cir. 2000). 28 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 1 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 2 U.S. at 678-79, 129 S. Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 3 be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 4 555 (citations omitted). 5 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 6 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 7 “buckshot” complaints). 8 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 9 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 10 complaint must be “complete in itself without reference to the prior or superseded pleading.” 11 Local Rule 220. 12 Based on the foregoing, it is HEREBY ORDERED that: 13 1. Plaintiff’s request for the appointment of counsel is denied, without prejudice; 14 2. The Clerk’s Office shall send Plaintiff a complaint form; 15 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 16 amended complaint curing the deficiencies identified by the Court in this order, or file a notice of 17 voluntary dismissal; and 18 4. If Plaintiff fails to file an amended complaint in compliance with this order, the 19 Court will recommend dismissal of this action, with prejudice, consistent with the reasons 20 discussed in this order. 21 IT IS SO ORDERED. 22
23 Dated: September 10, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24
25 26 27 28