1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY JOSEPH THOMAS, Case No.: 3:19-cv-01384-CAB-WVG CDCR #J-05107, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 APPOINT COUNSEL; and
15 CALIFORNIA STATE BOARD OF (2) DISMISSING CIVIL ACTION 16 PAROLE; PETER LABAHN, FOR FAILING TO STATE A CLAIM, 17 Defendants. AND FOR SEEKING DAMAGES FROM IMMUNE DEFENDANTS 18 PURSUANT TO 28 U.S.C. 19 § 1915(e)(2)(B) AND § 1915A(b) 20 21 22 23 24 I. Procedural History 25 On July 24, 2019, Larry Joseph Thomas, (“Plaintiff”), currently incarcerated at the 26 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and 27 proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 28 Before the Court could conduct the required sua sponte screening, Plaintiff filed a First 1 Amended Complaint (“FAC”) which became the operative pleading. (ECF No. 4.) 2 Plaintiff did not prepay the filing fee mandated by 28 U.S.C. § 1914(a); instead, he 3 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 5). 5 On September 26, 2019, the Court GRANTED Plaintiff’s Motion to Proceed IFP 6 and simultaneously DISMISSED his FAC for failing to state a claim and for seeking 7 monetary damages against immune defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and 8 § 1915A(b). (ECF No. 7.) Plaintiff was granted leave to file an amended pleading to 9 correct the deficiencies of pleading identified in the Court’s Order. (Id. at 6-7.) 10 On November 8, 2019, Plaintiff filed his Second Amended Complaint (“SAC”) 11 and later filed a Motion to Appoint Counsel. (ECF Nos. 11, 13.) 12 II. Motion to Appoint Counsel 13 Plaintiff seeks appointment of counsel in this matter. (ECF No. 13.) All 14 documents filed pro se are liberally construed, and “a pro se complaint, however 15 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 16 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 17 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no constitutional right to 18 counsel in a civil case; and none of Plaintiff’s pleadings to date demand that the Court 19 exercise its limited discretion to request than an attorney represent him pro bono pursuant 20 to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of Social Servs., 21 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th 22 Cir. 2004). Only “exceptional circumstances” support such a discretionary appointment. 23 Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 24 970 (9th Cir. 2009). Exceptional circumstances exist where there is cumulative showing 25 of both a likelihood of success on the merits and a demonstrated inability of the pro se 26 litigant to articulate his claims in light of their legal complexity. Id. 27 As currently pleaded, Plaintiff’s SAC demonstrates that while he may not be 28 formally trained in law, he nevertheless is fully capable of legibly articulating the facts 1 and circumstances relevant to his claims, which are typical and not legally “complex.” 2 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff is not 3 able to show that he is likely to succeed on the merits of the claims he alleges in this 4 matter. Id. Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel 5 (ECF No. 13). 6 III. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 7 A. Standard of Review 8 As the Court previously informed Plaintiff, because he is a prisoner and is 9 proceeding IFP, his SAC requires a pre-answer screening pursuant to 28 U.S.C. 10 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 11 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state 12 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 13 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 14 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 15 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 16 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 17 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 18 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either 19 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 24 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 27 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. 42 U.S.C. § 1983 10 To state a claim under 42 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY JOSEPH THOMAS, Case No.: 3:19-cv-01384-CAB-WVG CDCR #J-05107, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 APPOINT COUNSEL; and
15 CALIFORNIA STATE BOARD OF (2) DISMISSING CIVIL ACTION 16 PAROLE; PETER LABAHN, FOR FAILING TO STATE A CLAIM, 17 Defendants. AND FOR SEEKING DAMAGES FROM IMMUNE DEFENDANTS 18 PURSUANT TO 28 U.S.C. 19 § 1915(e)(2)(B) AND § 1915A(b) 20 21 22 23 24 I. Procedural History 25 On July 24, 2019, Larry Joseph Thomas, (“Plaintiff”), currently incarcerated at the 26 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and 27 proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 28 Before the Court could conduct the required sua sponte screening, Plaintiff filed a First 1 Amended Complaint (“FAC”) which became the operative pleading. (ECF No. 4.) 2 Plaintiff did not prepay the filing fee mandated by 28 U.S.C. § 1914(a); instead, he 3 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 5). 5 On September 26, 2019, the Court GRANTED Plaintiff’s Motion to Proceed IFP 6 and simultaneously DISMISSED his FAC for failing to state a claim and for seeking 7 monetary damages against immune defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and 8 § 1915A(b). (ECF No. 7.) Plaintiff was granted leave to file an amended pleading to 9 correct the deficiencies of pleading identified in the Court’s Order. (Id. at 6-7.) 10 On November 8, 2019, Plaintiff filed his Second Amended Complaint (“SAC”) 11 and later filed a Motion to Appoint Counsel. (ECF Nos. 11, 13.) 12 II. Motion to Appoint Counsel 13 Plaintiff seeks appointment of counsel in this matter. (ECF No. 13.) All 14 documents filed pro se are liberally construed, and “a pro se complaint, however 15 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 16 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 17 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no constitutional right to 18 counsel in a civil case; and none of Plaintiff’s pleadings to date demand that the Court 19 exercise its limited discretion to request than an attorney represent him pro bono pursuant 20 to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of Social Servs., 21 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th 22 Cir. 2004). Only “exceptional circumstances” support such a discretionary appointment. 23 Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 24 970 (9th Cir. 2009). Exceptional circumstances exist where there is cumulative showing 25 of both a likelihood of success on the merits and a demonstrated inability of the pro se 26 litigant to articulate his claims in light of their legal complexity. Id. 27 As currently pleaded, Plaintiff’s SAC demonstrates that while he may not be 28 formally trained in law, he nevertheless is fully capable of legibly articulating the facts 1 and circumstances relevant to his claims, which are typical and not legally “complex.” 2 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff is not 3 able to show that he is likely to succeed on the merits of the claims he alleges in this 4 matter. Id. Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel 5 (ECF No. 13). 6 III. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 7 A. Standard of Review 8 As the Court previously informed Plaintiff, because he is a prisoner and is 9 proceeding IFP, his SAC requires a pre-answer screening pursuant to 28 U.S.C. 10 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 11 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state 12 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 13 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 14 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 15 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 16 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 17 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 18 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either 19 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 24 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 27 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. 42 U.S.C. § 1983 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 14 1035-36 (9th Cir. 2015). 15 C. Discussion 16 To the extent Plaintiff is seeking relief in the form of being deemed “eligible for 17 elderly parole” date and the “earliest eligible date,” see SAC at 7, his suit “challeng[es] 18 the validity of [his] continued incarceration [and therefore] lie[s] within ‘the heart of 19 habeas corpus.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser 20 v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of habeas corpus is 21 “explicitly and historically designed” to provide a state prisoner with the “exclusive” 22 means to “attack the validity of his confinement” in federal court)). Here, Plaintiff does 23 not claim that he was denied parole or denied due process during his parole hearing. 24 “There is no constitutional or inherent right of a convicted person to be conditionally 25 released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska 26 Penal and Correctional Complex, 442 U.S. 1, 7 (1979). 27 Second, Plaintiff may not seek damages against the Board of Parole Hearings, an 28 agency of the State of California. The State of California is not a “person” within the 1 meaning of § 1983 and is immune from suit under the Eleventh Amendment. See Will v. 2 Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Pennhurst State School & Hosp. 3 v. Halderman, 465 U.S. 89, 99-100 (1984) (Eleventh Amendment bars federal 4 jurisdiction over suits by individuals against a State and its instrumentalities, unless either 5 the State consents to waive its sovereign immunity or Congress abrogates it); see also 6 Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (dismissing prisoner’s § 1983 suit 7 against the State of Arizona as legally frivolous), superseded by statute on other grounds 8 as stated in Lopez, 203 F.3d at 1130; Brand v. Schubert, No. 2:16-CV-1811 MCE EFB P, 9 2017 WL 531721, at *2 (E.D. Cal. Feb. 7, 2017) (sua sponte dismissing § 1983 claims 10 against the State of California on sovereign immunity grounds pursuant to 28 U.S.C. 11 § 1915A). 12 Finally, Plaintiff cannot seek money damages against Defendant Labahn in his role 13 as the Board of Parole Hearings Commissioner. State parole officials are immune from 14 damages actions based on any decision to “‘grant, deny, or revoke parole’ because those 15 tasks are ‘functionally comparable’ to tasks performed by judges.” See Swift v. 16 California, 384 F.3d 1184, 1189 (9th Cir. 2004) (citations omitted.). 17 IV. Leave to Amend 18 Plaintiff has already been provided a short and plain statement of his pleading 19 deficiencies, as well as an opportunity to amend sufficient facts to support his claims to 20 no avail. Therefore, the Court finds further attempts to amend would be futile. See 21 Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of 22 amendment can, by itself, justify the denial of ... leave to amend.’”) (quoting Bonin v. 23 Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 24 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted 25 leave to amend and has subsequently failed to add the requisite particularity to its claims, 26 [t]he district court’s discretion to deny leave to amend is particularly broad.” (internal 27 quotation marks omitted) (second alteration in original)). 28 1 ||V. Conclusion and Order 2 Accordingly, the Court: 3 1) DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 13); 4 2) DISMISSES this civil action sua sponte without further leave to amend for 5 || failure to state a claim upon which § 1983 relief can be pursuant to 28 U.S.C. 6 1915(e)(2)(B) and § 1915A(b); 7 3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant 8 || to 28 U.S.C. § 1915(a)(3), and 9 4) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to 10 close the file. 11 IT IS SO ORDERED. 12 Dated: January 21, 2020 € ZL 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6