Garafolo v. Carrasco, et al.

Filing 11

ORDER DISMISSING 1 Complaint for Failure to Comply with Rules 8 and 10 of the Federal Rules of Civil Procedure ;and Plaintiff's 10 Motion for Appointment of Counsel is DENIED signed by District Judge G. Murray Snow on 2/18/2009. If Plaint iff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice. ( Amended Complaint due by 3/23/2009) (Attachments: # 1 Amended Complaint)(Figueroa, O)

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Vanjilis Garafolo, Plaintiff, vs. M . Carrasco, et al., Defendants.

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N o . CV 1-08-1371-GMS ORDER

P la in tif f Vanjilis Garafolo, who is confined in the California Correctional Institution in Tehachapi, California, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1). This case was reassigned to the undersigned judge on November 24, 2008. T h e Court will dismiss the Complaint with leave to amend. I. Statutory Screening of Prisoner Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). If the Court determines that a pleading could be cured by the a lle g a tio n of other facts, a pro se litigant is entitled to an opportunity to amend a complaint

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b e f o re dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (e n banc). The Court should not, however, advise the litigant how to cure the defects. This type o f advice "would undermine district judges' role as impartial decisionmakers." Pliler v. F o r d , 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide w h e th e r the court was required to inform a litigant of deficiencies). Plaintiff's Complaint w i ll be dismissed with leave to amend because the Complaint may possibly be saved by a m e n d m e n t. R u le 8(a) of the Federal Rules of Civil Procedure requires a "short and plain statement o f the claim." Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) states that "[e]ach allegation must be s im p le , concise, and direct." A complaint having the factual elements of a cause of action s c a tte re d throughout the complaint and not organized into a "short and plain statement of the claim " may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. C o ., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1 9 9 6 ). Rule 10(b) of the Federal Rules of Civil Procedure also requires a plaintiff to state c la im s in "numbered paragraphs, each limited as far as practicable to a single set of c irc u m s ta n c es ." Fed. R. Civ. P. 10(b). Moreover, "[i]f doing so would promote clarity, each c la im founded on a separate transaction or occurrence . . . must be stated in a separate count." F e d . R. Civ. P. 10(b). It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims. A lth o u g h Plaintiff has used a court-supplied form, the Court has reviewed Plaintiff's C o m p la in t and concludes that it fails to comply with Rules 8 and 10 of the Federal Rules of C ivil Procedure. Plaintiff's Complaint is nothing more than a lengthy narrative. The Court ca n n o t meaningfully review the Complaint, as required by 28 U.S.C. § 1915A(a). A c c o rd in g ly, the Court will dismiss the Complaint with leave to amend. II. L e a v e to Amend F o r the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to c o m p l y with Rules 8 and 10 of the Federal Rules of Civil Procedure. Within 30 days, -2-

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P l a in tif f may submit a first amended complaint on the form provided with this Order. If P la in tif f fails to use the form provided with this Order, the Court may strike the amended c o m p l a in t and dismiss this action without further notice to Plaintiff. P la in t if f must clearly designate on the face of the document that it is the "First A m e n d e d Complaint." The amended complaint must be retyped or rewritten in its entirety o n the form provided with this Order and may not incorporate any part of the original C o m p la in t by reference. P lain tiff must comply with the instructions provided with the form. Plaintiff should p a y close attention to the instructions provided with the form. If Plaintiff fails to comply w ith the instructions provided with the form, the Court may strike the amended complaint a n d dismiss this action without further notice to Plaintiff. Among other requirements contained in the instructions, Plaintiff must provide in f o r m a tio n in an amended complaint regarding the Court's jurisdiction and the defendants, a n d he must divide his lawsuit into separate counts. In each count, Plaintiff must identify th e federal constitutional civil right 1 allegedly violated, check the box for the issue most c lo s e ly involved, state how each defendant participated in the alleged violation at issue, e x p la in how Plaintiff was injured by the alleged violation, and mark whether Plaintiff e x h a u ste d any available administrative remedies. Plaintiff must repeat this process for each c iv il rights claim. Plaintiff may allege only one claim per count.

T o establish that he was denied meaningful access to the courts, a plaintiff must s u b m it evidence showing that he suffered an "actual injury" as a result of the defendants' a c ti o n s . See Lewis v. Casey, 518 U.S. 343 (1996). An "actual injury" is "actual prejudice w ith respect to contemplated or existing litigation, such as the inability to meet a filing d e a d lin e or to present a claim." Id. at 348. To show actual injury with respect to c o n tem p late d litigation, the plaintiff must demonstrate that the conduct of the defendants p re v e n te d him from bringing to court a nonfrivolous claim that he wished to present. Id. at 3 5 2 - 5 3 . That nonfrivolous claim must be a direct or collateral attack on the inmate's s e n te n c e, or a challenge to the conditions of his confinement. Id. at 355. "Impairment of any o th e r litigating capacity is simply one of the incidental (and perfectly constitutional) co n seq u en ce s of conviction and incarceration." Id. (emphasis in original). -3-

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F .2 d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1 5 4 6 (9th Cir. 1990). After amendment, the Court will treat an original complaint as n o n e x is te n t. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original c o m p l a in t is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 5 6 5 , 567 (9th Cir. 1987). III. M o tio n for Appointment of Counsel O n December 19, 2008, Plaintiff filed a Motion for Appointment of Counsel. There is no constitutional right to appointment of counsel in a civil case. See Ivey v. Board of R e g e n ts of University of Alaska, 673 F.2d 266 (9th Cir. 1982). The appointment of counsel in a civil rights case is required only when exceptional circumstances are present. Aldabe v . Aldabe, 616 F.2d 1089 (9th Cir. 1980); Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1 9 8 6 ). "A finding of exceptional circumstances requires an evaluation of both `the

lik e lih o o d of success on the merits [and] the ability of the petitioner to articulate his claims p r o se in light of the complexity of the legal issues involved.'" Wilborn, 789 F.2d at 1331 (q u o tin g Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The Court must review both o f these factors together in deciding whether or not to appoint counsel. Id. The Court has reviewed and evaluated the Complaint and finds this action presents n o "exceptional circumstances" requiring the appointment of counsel at this time. Plaintiff is in no different a position than other pro se litigations who have brought nearly identical c la im s . Accordingly, Plaintiff's Motion for Appointment of Counsel (Doc. #10) will be d e n ie d . IV. W a r n in g s A. A d d r e s s Changes

P lain tiff must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f ) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in d is m is s a l of this action. -4-

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B.

Copies

P la in tif f must submit an additional copy of every filing for use by the Court. See L R C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tic e to Plaintiff. C. Possible Dismissal

I f Plaintiff fails to timely comply with every provision of this Order, including these w a rn in g s , the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1 2 6 0 -6 1 (a district court may dismiss an action for failure to comply with any order of the C o u r t) . IT IS ORDERED: (1) T h e Complaint (Doc. #1) is dismissed for failure to comply with Rules 8 and

1 0 of the Federal Rules of Civil Procedure. Plaintiff has 30 days from the date this Order is filed to file an amended complaint in compliance with this Order. (2 ) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

C o u rt must, without further notice, enter a judgment of dismissal of this action with p r e ju d ic e . (3 ) is denied. (4 ) T h e Clerk of Court must include with this Order a copy of this judge's required P la in tif f 's December 19, 2008 Motion for Appointment of Counsel (Doc. #10)

fo rm for filing a civil rights complaint by a prisoner. D A T E D this 18 th day of February, 2009.

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