1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 NARCISO RAMIREZ, 11 Case No. 24-cv-01714 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 C. PFEIFFER, et al., 15
Defendants. 16 (Docket No. 38)
18 Plaintiff, a state inmate currently confined at Kern Valley State Prison (KVSP), 19 filed a civil rights complaint under 42 U.S.C. § 1983 in the Eastern District. Dkt. No. 1. 20 After screening the second amended complaint (“SAC”), Dkt. No. 25, the Eastern District 21 determined it was no longer the proper venue and transferred the matter to this district. 22 Dkt. No. 26. The matter was reassigned to the undersigned on May 8, 2024. Dkt. No. 31. 23 The Court will now proceed with an initial screening of the SAC. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff claims that on May 11, 2019, he was beaten by Defendants G. Hernandez, 12 T. Saetevrn, and J. Sivongsa at Salinas Valley State Prison (“SVSP”). Dkt. No. 25 at 3-5. 13 Specifically, Plaintiff alleges that while he was handcuffed and in leg cuff restraints while 14 lying down, Defendants proceeded to “stomp, punch, kick” him “for no reason.” Id. at 3. 15 Plaintiff claims he suffers from “physical, psychological, emotional, PTSD traumas.” Id. 16 Plaintiff also claims that Defendant N. Gounden “with additional defendants had 17 deliberately denied medical attention/needs” on that date. Id. at 5. Plaintiff claims 18 Defendants’ conduct violated his rights under the First, Fifth, Eighth, and Fourteenth 19 Amendment rights. Id. at 3. Plaintiff seeks damages and injunctive relief. Id. at 6. 20 Liberally construed, Plaintiff’s allegations are sufficient to state a cognizable 21 excessive force claim against Defendants Hernandez, Saetevrn, and Sivongsa under the 22 Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Whitley v. Albers, 23 475 U.S. 312, 319 (1986). 24 However, Plaintiff’s allegation of deliberate indifference against Defendant 25 Gounden and “additional defendants” is insufficient. Deliberate indifference to a 26 prisoner’s serious medical needs violates the Eighth Amendment’s proscription against 1 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX 2 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 3 determination of “deliberate indifference” involves an examination of two elements: the 4 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 5 that need. See McGuckin, 974 F.2d at 1059. 6 A “serious” medical need exists if the failure to treat a prisoner’s condition could 7 result in further significant injury or the “unnecessary and wanton infliction of pain.” 8 McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). A prison official is 9 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 10 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 11 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which 12 the inference could be drawn that a substantial risk of serious harm exists,” but he “must 13 also draw the inference.” Id. If a prison official should have been aware of the risk, but 14 was not, then the official has not violated the Eighth Amendment, no matter how severe 15 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), 16 Plaintiff provides no factual allegations explaining the specific “serious” medical 17 needs he had from the excessive force incident nor any description of Defendant 18 Gounden’s knowledge of and response to those needs to establish that this defendant acted 19 with deliberate indifference. Furthermore, Plaintiff refers to an additional list of 20 defendants attached to the SAC, but there are no allegations to establish that the defendants 21 listed thereon acted with deliberate indifference to his serious needs. The Court also notes 22 that this list includes individuals who are not SVSP staff but those who work at other 23 prison facilities. Dkt. No. 25 at 13-15. There are no factual allegations indicating that 24 these individuals were involved in the May 11, 2019 incident. Unless Plaintiff can allege 25 sufficient facts to establish that these other defendants are liable, they must be dismissed 26 from this action. 1 the First Amendment, e.g., freedom of speech or right to petition the government, or due 2 process under the Fifth, and Fourteenth Amendments. 3 Plaintiff shall be granted leave to amend to attempt to correct the deficiencies of the 4 Eighth Amendment deliberate indifference claim against Defendant Gounden and 5 “additional defendants” if he can do so in good faith, as well as attempt to state sufficient 6 facts to support a claim under the First, Fifth, or Fourteenth Amendments. 7 Plaintiff should keep the following principles in mind in preparing an amended 8 complaint. Liability may be imposed on an individual defendant under § 1983 only if 9 Plaintiff can show that the defendant proximately caused the deprivation of a federally 10 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 11 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 12 constitutional right within the meaning of section 1983 if he does an affirmative act, 13 participates in another’s affirmative act or omits to perform an act which he is legally 14 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 15 F.2d at 633. 16 C. Motion for Appointment of Counsel 17 Plaintiff requests appointment of counsel and repeats his request for a preliminary 18 injunction and TRO. Dkt. No. 38.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 NARCISO RAMIREZ, 11 Case No. 24-cv-01714 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 C. PFEIFFER, et al., 15
Defendants. 16 (Docket No. 38)
18 Plaintiff, a state inmate currently confined at Kern Valley State Prison (KVSP), 19 filed a civil rights complaint under 42 U.S.C. § 1983 in the Eastern District. Dkt. No. 1. 20 After screening the second amended complaint (“SAC”), Dkt. No. 25, the Eastern District 21 determined it was no longer the proper venue and transferred the matter to this district. 22 Dkt. No. 26. The matter was reassigned to the undersigned on May 8, 2024. Dkt. No. 31. 23 The Court will now proceed with an initial screening of the SAC. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 Plaintiff claims that on May 11, 2019, he was beaten by Defendants G. Hernandez, 12 T. Saetevrn, and J. Sivongsa at Salinas Valley State Prison (“SVSP”). Dkt. No. 25 at 3-5. 13 Specifically, Plaintiff alleges that while he was handcuffed and in leg cuff restraints while 14 lying down, Defendants proceeded to “stomp, punch, kick” him “for no reason.” Id. at 3. 15 Plaintiff claims he suffers from “physical, psychological, emotional, PTSD traumas.” Id. 16 Plaintiff also claims that Defendant N. Gounden “with additional defendants had 17 deliberately denied medical attention/needs” on that date. Id. at 5. Plaintiff claims 18 Defendants’ conduct violated his rights under the First, Fifth, Eighth, and Fourteenth 19 Amendment rights. Id. at 3. Plaintiff seeks damages and injunctive relief. Id. at 6. 20 Liberally construed, Plaintiff’s allegations are sufficient to state a cognizable 21 excessive force claim against Defendants Hernandez, Saetevrn, and Sivongsa under the 22 Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Whitley v. Albers, 23 475 U.S. 312, 319 (1986). 24 However, Plaintiff’s allegation of deliberate indifference against Defendant 25 Gounden and “additional defendants” is insufficient. Deliberate indifference to a 26 prisoner’s serious medical needs violates the Eighth Amendment’s proscription against 1 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX 2 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 3 determination of “deliberate indifference” involves an examination of two elements: the 4 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 5 that need. See McGuckin, 974 F.2d at 1059. 6 A “serious” medical need exists if the failure to treat a prisoner’s condition could 7 result in further significant injury or the “unnecessary and wanton infliction of pain.” 8 McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). A prison official is 9 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 10 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 11 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which 12 the inference could be drawn that a substantial risk of serious harm exists,” but he “must 13 also draw the inference.” Id. If a prison official should have been aware of the risk, but 14 was not, then the official has not violated the Eighth Amendment, no matter how severe 15 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), 16 Plaintiff provides no factual allegations explaining the specific “serious” medical 17 needs he had from the excessive force incident nor any description of Defendant 18 Gounden’s knowledge of and response to those needs to establish that this defendant acted 19 with deliberate indifference. Furthermore, Plaintiff refers to an additional list of 20 defendants attached to the SAC, but there are no allegations to establish that the defendants 21 listed thereon acted with deliberate indifference to his serious needs. The Court also notes 22 that this list includes individuals who are not SVSP staff but those who work at other 23 prison facilities. Dkt. No. 25 at 13-15. There are no factual allegations indicating that 24 these individuals were involved in the May 11, 2019 incident. Unless Plaintiff can allege 25 sufficient facts to establish that these other defendants are liable, they must be dismissed 26 from this action. 1 the First Amendment, e.g., freedom of speech or right to petition the government, or due 2 process under the Fifth, and Fourteenth Amendments. 3 Plaintiff shall be granted leave to amend to attempt to correct the deficiencies of the 4 Eighth Amendment deliberate indifference claim against Defendant Gounden and 5 “additional defendants” if he can do so in good faith, as well as attempt to state sufficient 6 facts to support a claim under the First, Fifth, or Fourteenth Amendments. 7 Plaintiff should keep the following principles in mind in preparing an amended 8 complaint. Liability may be imposed on an individual defendant under § 1983 only if 9 Plaintiff can show that the defendant proximately caused the deprivation of a federally 10 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 11 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 12 constitutional right within the meaning of section 1983 if he does an affirmative act, 13 participates in another’s affirmative act or omits to perform an act which he is legally 14 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 15 F.2d at 633. 16 C. Motion for Appointment of Counsel 17 Plaintiff requests appointment of counsel and repeats his request for a preliminary 18 injunction and TRO. Dkt. No. 38. Plaintiff alleges difficulty accessing the law library and 19 mail tampering, as well as mental health challenges. Id. at 1-2. 20 There is no constitutional right to counsel in a civil case unless an indigent litigant 21 may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social 22 Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 23 (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds 24 on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel 25 to represent an indigent litigant under § 1915 is within “the sound discretion of the trial 26 court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1 prisoner-plaintiffs to warrant appointment of counsel. Rather, he should pursue 2 administrative remedies to obtain relief for the challenged conditions at KVSP. 3 Accordingly, Plaintiff’s motion is DENIED without prejudice for lack of exceptional 4 circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th 5 Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 6 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This denial 7 is without prejudice to the Court’s sua sponte appointment of counsel at a future date 8 should the circumstances of this case warrant such appointment. 9 Furthermore, the Court has already addressed Plaintiff’s prior motion for a 10 preliminary injunction and denied it. Dkt. No. 37. He presents no new compelling reasons 11 to reconsider this decision. 12 13 CONCLUSION 14 For the reasons state above, the Court orders as follows: 15 1. The second amended complaint is DISMISSED with leave to amend. 16 Within twenty-eight (28) days from the date this order is filed, Plaintiff shall file a third 17 amended complaint using the court’s form complaint to correct the deficiencies described 18 above. The third amended complaint must include the caption and civil case number used 19 in this order, i.e., Case No. C 24-cv-01417 BLF (PR), and the words “THIRD AMENDED 20 COMPLAINT” on the first page. Plaintiff must answer all the questions on the form in 21 order for the action to proceed. Plaintiff is reminded that the third amended complaint 22 supersedes the original and previous amended complaints, and Plaintiff may not make 23 references to those complaints. Claims not included in the third amended complaint are no 24 longer claims and defendants not named therein are no longer defendants. See Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 26 In the alternative, Plaintiff may file notice to proceed on the cognizable excessive 1 claims and Defendants from the SAC. 2 2. Failure to respond in accordance with this order by filing a third 3 || amended complaint or notice in the time provided will result in this matter 4 || proceeding solely on the excessive force claim identified above and all other 5 || defendants and claims being dismissed with prejudice from this action for failure to 6 state a claim for relief without further notice to Plaintiff. 7 3. Plaintiff's motion for appointment of counsel is DENIED. Dkt. No. 38. 8 4, The Clerk shall include two copies of the court’s complaint with a copy of 9 || this order to Plaintiff. 10 This order terminates Docket No. 38. 11 IT IS SO ORDERED. = 12 || Dated: July 22, 2024 foiinihacnan BETH LABSON FREEMAN 13 United States District Judge 15 16
Oo Z 18 19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend PRO-SE\BLF\CR.24\01417Ramirez_dwlta 26 27