Aguilar v. CDC Metro Sheriff Dept. et al

Filing 12

ORDER DISMISSING Action, Without Prejudice, for Failure to State a Claim 11 ; ORDER DENYING Motion for Appointment of Counsel 10 , signed by Magistrate Judge Barbara A. McAuliffe on 8/27/12: The Clerk's Office shall enter judgment. (CASE CLOSED)(Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ABEL AGUILAR,

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Plaintiff,

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vs.

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CDC METRO SHERIFF DEPT.,

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I.

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL (ECF No. 10)

________________________________/

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO STATE A
CLAIM (ECF No. 11)

Defendants.

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1:12-cv-01087-BAM (PC)

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Procedural History
Plaintiff Abel Aguilar is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on July 5, 2012. (ECF

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No. 1.) Plaintiff consented to the jurisdiction of the Magistrate Judge on August 3, 2012. (ECF

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No. 8.) On August 15, 2012, Plaintiff filed a motion for the appointment of counsel, and on

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August 24, 2012, a first amended complaint was filed. (ECF Nos. 10, 11.)

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II.

First Amended Complaint

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A.

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The Court is required to screen complaints brought by prisoners seeking relief against a

Screening Requirement

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or
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that “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-

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65 (2007)).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is

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now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to

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survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual

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detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged, Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted

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unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability”

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falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949;

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Moss, 572 F.3d at 969.

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B.

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In addressing Plaintiff’s motion for appointment of counsel, the Court has reviewed,

Discussion

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Plaintiff’s first amended complaint and motion for appointment of counsel. In his first amended

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complaint, Plaintiff states that Defendants Zimmerman and Bravo are doing bad things, stealing

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individuals identities, in the guise of preventing terrorism. Plaintiff seeks to stop the terror by

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investigating the crime. He states that he seeks all police reports and probation reports and wants

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his case dismissed due to lack of evidence. (ECF No. 11). In his motion for appointment of

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counsel, Plaintiff states that he is seeking twenty three months that have been taken from him due

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to his false arrest. (ECF No. 10.)

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When a prisoner is challenging the legality or duration of his custody and the relief he
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seeks is immediate or speedier release, his sole federal remedy is habeas corpus. Preiser v.

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Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973). Where the action is brought to

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restore time credits, the effect is to shorten the term of confinement and the action would need to

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be brought by habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S. Ct. 1242, 1246

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(2005). A “prisoner’s § 1983 action is barred (absent prior invalidation)-no matter the relief

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sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

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leading to conviction or internal prison proceedings)-if success in that action would necessarily

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demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82, 125 S.

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Ct. at 1248.

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Plaintiff is clearly challenging the legality or duration of his custody. Plaintiff alleges he

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was falsely convicted due to the misconduct of police officers. Plaintiff requests copies of the

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police and probation reports so he can show that he is being falsely detained, and wants his case

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dismissed for lack of evidence. (ECF No. 11 at 3.) Since the success in this action would

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necessarily demonstrate the invalidity of his confinement or its duration, the sole remedy

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available to Plaintiff is a writ of habeas corpus.

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III.

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Motion for Appointment of Counsel
Plaintiff filed a motion seeking the appointment of counsel. Plaintiff does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances. Even

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were the Court to find that Plaintiff needed assistance in articulating his claims, since the

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substance of Plaintiff’s complaint is that he was falsely convicted and is being illegally held, he

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cannot succeed on the merits in this section 1983 action. Plaintiff is seeking release from

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custody and his sole remedy is a writ of habeas corpus. Id.

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IV.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely

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given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted

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if it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d

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1122, 1130 (9th Cir. 2000) (internal citations omitted). However, the Court finds that the

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deficiencies outlined above are not capable of being cured by amendment, and therefore leave to

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amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F. 2d 1446,

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1448-49 (9th Cir. 1987).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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a claim upon which relief may be granted under section 1983;
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This action is DISMISSED, without prejudice, based on Plaintiff’s failure to state

Plaintiff’s motion for appointment of counsel, filed August 15, 2012, is DENIED;
and

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The Clerk’s Office shall enter judgment.

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IT IS SO ORDERED.
Dated:
10c20k

August 27, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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