UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
JESSE RYAN ROGSTAD, Case No. 1:19-cv-00176-BLW Plaintiff, INITIAL REVIEW ORDER v. BY SCREENING JUDGE
LIEUTENANT OVERGAARD,
Defendant.
The Clerk of Court conditionally filed Plaintiff Jesse Ryan Rogstad’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it or any of the claims contained therein should be summarily dismissed under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order. 1. Screening Requirement The Court must review complaints filed by persons who cannot pay the filing fee and prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim
for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To state a plausible civil rights claim under 42 U.S.C. § 1983, a plaintiff must
allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction. He alleges that, in the spring of 2018, Lieutenant Overgaard came into his cell at 3:00 a.m.
and slid his mattress back by the bunk. Plaintiff told Overgaard to get out of his cell. Overgaard then pushed Plaintiff against the wall and bed, cracking his head and leaving a huge scar on the back of his head. (Dkt. 3, p. 2.) Plaintiff asserts that these acts violated his federal constitutional and state law rights. 4. Substantive Standards of Law
Unconstitutionally excessive force occurs when a government actor subjects a prisoner to gratuitous or disproportionate force that has no object but to inflict pain. Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Under the Eighth Amendment, force is deemed legitimate in a custodial setting as long as it is applied “in a good faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause harm.” Id. To determine if an application of force was applied maliciously and sadistically to
cause harm, a variety of factors are considered including: “the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1, 7-8 (1992); see also Whitley, 475 U.S. at 321; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From
consideration of such factors, “inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321. A state law claim of civil battery consists of an intentional, unpermitted contact
upon the person of another which is unlawful, harmful or offensive. White v. University of Idaho, 118 Idaho 400, 797 P.2d 108 (1990). The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Id. 5. Discussion Though sparse, Plaintiff’s allegations state a federal and state law claim upon which
he can proceed. This Order does not guarantee that any of Plaintiff’s claims will be successful or that they have been presented in a procedurally proper manner. Rather, this Order merely finds that Plaintiff’s claims are plausible—meaning that these claims will not be summarily dismissed at this time but should proceed to the next stage of litigation. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims. 6. Request for Appointment of Counsel
Plaintiff also seeks appointment of counsel. Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se considering the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is
dispositive, and both must be evaluated together. Id. Plaintiff’s Complaint, liberally construed, appears to state a claim upon which relief could be granted if the allegations are proven at trial. However, without more than the bare allegations of the Complaint, the Court does not have a sufficient basis upon which to assess the merits at this point in the proceeding. The legal issues in this matter
do not appear to be complex. Based on the foregoing, the Court will deny Plaintiff’s request for appointment of counsel without prejudice. If it seems appropriate later in this litigation, the Court will reconsider appointing counsel. A federal court has no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
JESSE RYAN ROGSTAD, Case No. 1:19-cv-00176-BLW Plaintiff, INITIAL REVIEW ORDER v. BY SCREENING JUDGE
LIEUTENANT OVERGAARD,
Defendant.
The Clerk of Court conditionally filed Plaintiff Jesse Ryan Rogstad’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it or any of the claims contained therein should be summarily dismissed under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order. 1. Screening Requirement The Court must review complaints filed by persons who cannot pay the filing fee and prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim
for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To state a plausible civil rights claim under 42 U.S.C. § 1983, a plaintiff must
allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction. He alleges that, in the spring of 2018, Lieutenant Overgaard came into his cell at 3:00 a.m.
and slid his mattress back by the bunk. Plaintiff told Overgaard to get out of his cell. Overgaard then pushed Plaintiff against the wall and bed, cracking his head and leaving a huge scar on the back of his head. (Dkt. 3, p. 2.) Plaintiff asserts that these acts violated his federal constitutional and state law rights. 4. Substantive Standards of Law
Unconstitutionally excessive force occurs when a government actor subjects a prisoner to gratuitous or disproportionate force that has no object but to inflict pain. Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Under the Eighth Amendment, force is deemed legitimate in a custodial setting as long as it is applied “in a good faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause harm.” Id. To determine if an application of force was applied maliciously and sadistically to
cause harm, a variety of factors are considered including: “the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1, 7-8 (1992); see also Whitley, 475 U.S. at 321; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From
consideration of such factors, “inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321. A state law claim of civil battery consists of an intentional, unpermitted contact
upon the person of another which is unlawful, harmful or offensive. White v. University of Idaho, 118 Idaho 400, 797 P.2d 108 (1990). The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Id. 5. Discussion Though sparse, Plaintiff’s allegations state a federal and state law claim upon which
he can proceed. This Order does not guarantee that any of Plaintiff’s claims will be successful or that they have been presented in a procedurally proper manner. Rather, this Order merely finds that Plaintiff’s claims are plausible—meaning that these claims will not be summarily dismissed at this time but should proceed to the next stage of litigation. This Order is not intended to be a final or a comprehensive analysis of Plaintiff’s claims. 6. Request for Appointment of Counsel
Plaintiff also seeks appointment of counsel. Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
In civil cases, counsel should be appointed only in “exceptional circumstances.” Id. To determine whether exceptional circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate the claims pro se considering the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is
dispositive, and both must be evaluated together. Id. Plaintiff’s Complaint, liberally construed, appears to state a claim upon which relief could be granted if the allegations are proven at trial. However, without more than the bare allegations of the Complaint, the Court does not have a sufficient basis upon which to assess the merits at this point in the proceeding. The legal issues in this matter
do not appear to be complex. Based on the foregoing, the Court will deny Plaintiff’s request for appointment of counsel without prejudice. If it seems appropriate later in this litigation, the Court will reconsider appointing counsel. A federal court has no authority to require attorneys to represent indigent litigants in civil cases under 28 U.S.C. § 1915(e)(1) or under the Court’s inherent authority. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (holding that
the appointment of counsel provision in § 1915, formerly found in subsection (d), does not “authorize[] a federal court to require an unwilling attorney to represent an indigent litigant in a civil case. Rather, when a Court “appoints” an attorney, it can do so only if the attorney voluntarily accepts the assignment. Id. The Court has no funds to pay for attorney fees in civil matters such as this one, and it is often difficult to find attorneys
willing to work on a case without payment—especially in prisoner cases, where contact with the client is particularly difficult. For these reasons, Plaintiff should attempt to procure counsel on a contingency or other basis, if possible. ORDER IT IS ORDERED:
1. Plaintiff’s Request for Appointment of Counsel (contained in the Complaint) is DENIED. 2. Defendant Lieutenant Overgaard will be allowed to waive service of summons by executing, or having their counsel execute, the Waiver of Service of Summons as provided by Fed. R. Civ. P. 4(d) and returning it to
the Court within 30 days. If Defendants choose to return the Waiver of Service of Summons, the answer or pre-answer motion will be due in accordance with Rule 12(a)(1)(A)(ii). Accordingly, the Clerk of Court will forward a copy of the Complaint (Dkt. 3), a copy of this Order, and a Waiver of Service of Summons to the following counsel: Mark Kubinski, Deputy Attorney General for the State of Idaho, Idaho Department of
Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706 on behalf of Defendant. 3. Should any entity determine that the individuals for whom counsel for the entity was served with a waiver are not, in fact, its employees or former employees, or that its attorney will not be appearing for the entity or for
particular former employees, it should file a notice within the CM/ECF system, with a copy mailed to Plaintiff, indicating which individuals for whom service will not be waived. 4. If Plaintiff receives a notice from Defendants indicating that service will not be waived for an entity or certain individuals, Plaintiff will have an
additional 90 days from the date of such notice to file a notice of physical service addresses of the remaining Defendants, or claims against them will be dismissed without prejudice without further notice. 5. The parties must follow the deadlines and guidelines in the Standard Disclosure and Discovery Order for Pro Se Prisoner Civil Rights Cases,
issued with this Order. 6. Any amended pleadings must be submitted, along with a motion to amend, within 150 days after entry of this Order. 7. Dispositive motions must be filed no later than 300 days after entry of this Order. 8. Each party must ensure that all documents filed with the Court are
simultaneously served upon the opposing party (through counsel if the party has counsel) by first-class mail or via the CM/ECF system, pursuant to Federal Rule of Civil Procedure 5. Each party must sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of service, and name of
person upon whom service was made. 9. The Court will not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rule of Civil Practice before the United States District Court for the District of Idaho 7.2. (“Ex parte”
means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.) 10. All Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a pleading or motion, with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rule of Civil Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United States District Court for the District of Idaho 5.1 and 7.1. The Court will not consider requests made in the form of letters. 11. No party may have more than three pending motions before the Court at one time, and no party may file a motion on a particular subject matter if that party has another motion on the same subject matter currently pending before the Court. Motions submitted in violation of this Order may be stricken, summarily denied, or returned to the moving party unfiled. 12. Plaintiff must notify the Court immediately if Plaintiff's address changes. Failure to do so may be cause for dismissal of this case without further notice. 13. Pursuant to General Order 324, this action is hereby returned to the Clerk of Court for random civil case assignment to a presiding judge, on the proportionate basis previously determined by the District Judges, having given due consideration to the existing caseload.
Ka DATED: August 23, 2019 oor Laven: Se), B. Lynn Winmill CDS US. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 8