Warren v. Parsons

CourtDistrict Court, S.D. California
DecidedAugust 9, 2021
Docket3:20-cv-00405
StatusUnknown

This text of Warren v. Parsons (Warren v. Parsons) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warren v. Parsons, (S.D. Cal. 2021).

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS WARREN, Case No.: 3:20-cv-00405-JAH-JLB CDCR #P-60052, 12 ORDER: Plaintiff, 13 vs. (1) DENYING PLAINTIFF’S 14 MOTION TO APPOINT COUNSEL C/O PARSONS, et al., 15 [ECF No. 14] Defendants. 16 AND 17 (2) DISMISSING CIVIL ACTION 18 FOR FAILING TO STATE A CLAIM 19 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 20 28 U.S.C. § 1915A(b)(1) 21 22 Plaintiff Thomas Warren, incarcerated at Richard J. Donovan Correctional Facility 23 (“RJD”) in San Diego, California, is proceeding pro se and in forma pauperis (“IFP”), in 24 this civil rights action pursuant to 42 U.S.C. § 1983. 25 I. Procedural History 26 In his original Complaint, Warren claimed RJD Correctional Officers P. Parsons 27 and John Doe #1, Sgt. C. Godinez, Correctional Counselors E. Aukerman and L. Garnica, 28 Warden D. Paramo, Associate Warden J. Juarez, and an unidentified John/Jane Doe 1 inmate appeals official violated his Fourth, Fifth, Eighth, and Fourteenth Amendment 2 rights when they searched his cell on March 5, 2018, left it in disarray, confiscated his 3 personal property, and thereafter conspired to coverup the wrongdoing by denying his 4 inmate appeals. See Compl., ECF No. 1 at 2-14. 5 On July 6, 2020, the Court granted Warren leave to proceed IFP, but 6 simultaneously screened and dismissed his Complaint sua sponte for failing to state a 7 claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 8 and § 1915A(b)(1). See ECF No. 7. Specifically, the Court dismissed Warren’s Fourth 9 Amendment claims because he “has no expectation of privacy in his prison cell,” see id. 10 at 6 (citing Hudson v. Palmer, 468 U.S. 517, 525-26 (1984)), his Fifth Amendment due 11 process claims because he alleged violations by state, and not federal actors, id. at 7 n.3 12 (citing Castillo v. McFadden, 370 F.3d 882, 889 n.5 (9th Cir. 2004)), his Eighth 13 Amendment claims because he failed to allege any facts sufficient to show the 14 confiscation of his personal property deprived him of “the minimal civilized measure of 15 life’s necessities,” id. at 6 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), his 16 Fourteenth Amendment claims because California provides an adequate post-deprivation 17 remedy for negligent or intentional deprivations of personal property sufficient to satisfy 18 due process, id. at 7‒8 (citing Barnett v. Centoni, 31 F.3d 813, 816‒17 (9th Cir. 1994)), 19 his conspiracy claims because he failed to allege any of the Defendants entered into any 20 express or implied agreement to violate his constitutional rights, id. at 8 (citing Avalos v. 21 Baca, 596 F.3d 583, 592 (9th Cir. 2010)), and his claims against RJD’s inmate appeals 22 officials because the denial of an administrative grievance, without more, cannot serve as 23 a basis for § 1983 liability. Id. at 8‒9 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th 24 Cir. 2003)). The Court also granted Warren leave to file an Amended Complaint, advised 25 his failure to include any Defendant or claim would constitute waiver, and warned that if 26 he failed to fix his pleading deficiencies, the case would be dismissed in its entirety. See 27 id. at 10 (citing Lacey v. Maricopa Cnty, 693 F.3d 896, 928 (9th Cir. 2012); Lira v. 28 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)). 1 Warren has since filed a First Amended Complaint (“FAC”), which re-names 2 Defendants Paramo, Parsons, and Juarez, omits Defendants John Doe #1, Godinez, 3 Aukerman, Garnica, and John/Jane Doe, and adds the California Department of 4 Corrections and Rehabilitation (“CDCR”), former CDCR Secretary M. Cate, CDCR 5 Director of Adult Institutions C. Gipson, RJD Captain E. Garza, RJD Sgts. D. Hampton 6 and Vanderwered, and Does 1-25 as Defendants. See FAC, ECF No. 12 at 1, 6‒9. 7 Warren’s Amended Complaint contains even fewer factual allegations than his 8 original Complaint, but he continues to claim Defendants, “each and every one, act[ed] 9 under color of state law to depriv[e] him” of his personal and intellectual property in 10 violation of the First and Fourteenth Amendments.1 See FAC at 11‒14. The primary 11 focus of his Amended Complaint, however, centers on state law causes of action 12 including allegations of criminal theft, fraud, embezzlement, and conversion. Id. at 17‒ 13 19, 23‒28. Warren also asserts multiple violations of intentional infliction of emotional 14 distress and breaches of contract, fiduciary duty, and the covenant of good faith and fair 15 dealing under state tort law. Id. at 19‒23. He seeks $1,098,748 in both compensatory and 16 punitive damages. Id. at 32. Warren has also filed a Motion to Appoint Counsel. See ECF 17 No. 14. 18 II. Motion to Appoint Counsel 19 Warren first seeks the appointment of counsel pursuant to Cal. Penal Code 20 § 2601(d) and Smith v. Ogbuehi, 38 Cal. App. 5th 453 (2019), reh’g denied (Aug. 28, 21 22 23 1 While Plaintiff’s FAC supersedes his original pleading, see Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989), he explicitly incorporates by reference several exhibits 24 he submitted in support of his original Complaint in the body of his FAC. See e.g., FAC at 15‒16; see 25 also “Plaintiff’s Request for Judicial Notice of Exhibits,” filed as Exhibits in Support of Complaint, ECF No. 4. The Court “must consider the complaint in its entirety,” including “documents incorporated into 26 the complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 27 (2007); Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 28 1 2019) (Cal. Ct. App. 5th Dist. 2019). See ECF No. 14 at 1‒4. 2 Smith is a non-binding California Court of Appeal decision, however, that 3 discusses the state court’s discretion to appoint counsel to a civil litigant in California 4 court proceedings. See Smith, 38 Cal. App. 5th at 468‒69. And while it requires 5 California courts to consider similar factors, even Smith notes that the appointment of 6 counsel in a federal civil action is governed by 28 U.S.C. § 1915. Id. at 469‒470 (“It 7 follows that the relevant circumstances include, without limitation, the factors listed in 8 the federal decisions for determining whether exceptional circumstances exist in a 9 particular case.”) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)). 10 “[T]here is ‘no constitutional right to counsel in a civil case.’” Adir Int’l, LLC v. 11 Starr Indem. & Liab. Co., 994 F.3d 1032, 1038–39 (9th Cir. 2021) (quoting United States 12 v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., Washington, 795 F.2d 13 796, 801 (9th Cir. 1986) (cleaned up)).

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