Simmons v. Atkins, et al.

Filing 7

SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, for Failure to State a Cognizable Claim for Relief 1 , signed by Magistrate Judge Barbara A. McAuliffe on 7/5/17: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER F. SIMMONS, JR., Case No. 1:16-cv-01447-BAM (PC) 12 SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF 13 14 Plaintiff, v. SHERRI ATKINS, et al., (ECF No. 1) 15 Defendants. 16 THIRTY (30) DAY DEADLINE 17 18 19 Plaintiff Walter F. Simmons Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the 21 jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 3.) 22 Plaintiff’s complaint, filed on September 29, 2016, is currently before the Court for 23 screening. (ECF No. 1.) 24 I. 25 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 27 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 28 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 1 1 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 2 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader 4 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)). While a 8 plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” 9 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 10 citation omitted). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 12 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 13 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 14 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 15 named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 16 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 17 The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 18 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 19 (quotation marks omitted); Moss, 572 F.3d at 969. Plaintiff’s Allegations 20 II. 21 Plaintiff is currently housed at the Correctional Training Facility in Soledad, CA. The 22 events at issue in this complaint took place at Valley State Prison (“VSP”) in Chowchilla, CA. 23 Plaintiff names the following defendants in this action: Sherri Atkins, Native American Spiritual 24 Advisor at VSP; Carmen Maroney, Community Resource Manager at VSP; Warden R. Fisher; 25 former Warden Ron Davis; Governor Jerry Brown; State of California; and the United States of 26 America. 27 Plaintiff’s allegations are as follows: Plaintiff was denied weekly access to his primary 28 religious service; i.e., Sweat Lodge ceremonies by defendants Sherri Atkins, Carmen Maroney, 2 1 Warden Fisher, and former Warden Ron Davis. Each of these defendants is responsible for 2 ensuring qualified chaplains are provided and religious services needs are met. Plaintiff was denied 3 proper, meaningful, and authentic Lakota ceremonies as taught to Plaintiff by his ancestors and 4 spirit helper. All of the above are responsible, from Plaintiff’s arrival at VSP to the present. 5 Plaintiff was also denied a properly trained, endorsed, and federally recognized American 6 Indian “medicine man,” spiritual advisor or volunteer, from 2000 to present. 7 Plaintiff was denied access to, and ability to, acquire materials and items needed for prayer 8 and traditional cultural purposes, since 2006. 9 Plaintiff was denied freedom of religious expression by Defendant S. Atkins, including his 10 traditional right to conduct ceremony for himself and others in keeping with his family, histories, 11 personal vision and calling. 12 Plaintiff has been denied due process by Defendant S. Atkins, C. Maroney, Warden Fisher 13 and former Warden Davis. S. Atkins, who concocted a lie to have Plaintiff put in Ad Seg. Other 14 officials refused to do a thorough investigation of Plaintiff’s traditional ceremonies and lack of 15 qualification claims regarding S. Atkins. 16 Plaintiff was subjected to cruel and unusual punishments by S. Atkins, Warden R. Fisher, 17 and former Warden Ron Davis in having to endure daily disrespect of being denied all of the above, 18 the disrespecting of the Lodge and purification ceremonies conducted by unqualified non-Indians. 19 Further, Plaintiff endured shame, watered-down spirituality, dead ceremonies, and was placed in 20 Ad. Seg. on two separate occasions for voicing what is proper and correct for men’s ceremonies and 21 how to form a proper traditional spiritual circle. Plaintiff was then transferred, which severed 22 Plaintiff from close family connections, without affording him due process. 23 Plaintiff is seeing the appointment of counsel and a jury trial. Plaintiff also seeks that (1) 24 recognized, properly-trained AMI male spiritual advisors be utilized in men’s prisons; (2) that a 25 second Sweat Lodge and sacred grounds area be provided; (3) that federal guidelines for American 26 Indian religious property, materials and allowable items be implemented and the current restrictions 27 of the CDCR Religious Property Matrix be removed; (4) that Plaintiff’s personal vision and beliefs 28 regarding ceremonies for himself and others be recognized and accommodated; (5) that various 3 1 state and federal rules, regulations, policies and laws which violate Plaintiff’s rights be revised; and 2 (6) that an oversight counsel be formed under Plaintiff’s guidance. Plaintiff also seeks punitive and 3 compensatory damages. 4 5 6 III. Discussion A. Federal Rule of Civil Procedure 8 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). As noted 8 above, detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 9 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 10 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 12 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 13 Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. 14 Plaintiff’s complaint is short, but it is not a plain or clear statement of his claims and the 15 factually allegations underlying those claims. Plaintiff’s complaint is mainly comprised of 16 conclusory statements that his rights were denied. 17 Plaintiff has also attached fourteen pages of exhibits to his complaint. The exhibits are not 18 referenced or otherwise explained in the complaint. The Court is not required to sift through 19 Plaintiff’s exhibits and attachments in an effort to determine what Plaintiff's claim(s) are. 20 Plaintiff will be granted leave to amend his complaint. If Plaintiff elects to amend his 21 complaint, he must allege what each individual defendant, by name, did or did not do that resulted 22 in a violation of his constitutional rights. If he chooses to add attachments or exhibits to any 23 amended complaint (which he is not required to do), Plaintiff must identify them for the Court and 24 explain their significance, with particularity. Plaintiff may refer to exhibits that are already filed, but 25 must incorporate them by specific reference (using the title or form number of a report, date, author, 26 or other identifying information, for example). 27 /// 28 /// 4 1 2 B. Sovereign Immunity Plaintiff names the United States as a defendant. The United States is immune from suit 3 unless it consents to be sued. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) 4 (citing Dalehite v. United States, 346 U.S. 15, 30, 73 S. Ct. 956, 97 L. Ed. 1427 (1953)). Plaintiff 5 has not named any federal employees as defendants, or alleged any actions or inactions by a federal 6 employee for which the United States may be held liable in this action. Therefore, the United States 7 should be dismissed from this action. 8 9 C. Eleventh Amendment Plaintiff is also attempting to sue the State of California, which he may not do here. 10 Section 1983 authorizes a federal civil rights action against any “person” who acts under color of 11 state law. 42 U.S.C. § 1983. “Persons” who may be sued under § 1983 do not include a state or its 12 entities, or state employees acting in their official capacities. See Will v. Mich. Dept. of State 13 Police, 491 U.S. 58 (1989); see also Kentucky v. Graham, 473 U.S. 159 (1985) (the Eleventh 14 Amendment bars federal damages actions against a state and its entities). 15 Claims for damages against the state, its agencies or its officers for actions performed in 16 their official capacities are barred under the Eleventh Amendment, unless the state waives its 17 immunity. Kentucky, 473 U.S. at 169; see also Will, 491 U.S. at 71 (neither a state nor its officials 18 acting in their official capacities are persons under § 1983). Section 1983 does not abrogate the 19 states’ Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344–45 20 (1979). Suits for injunctive relief are also generally barred. See Nat’l Audubon Soc’y v. Davis, 307 21 F.3d 835, 847 (9th Cir. 2002); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 22 curiam) (holding that prisoner’s Eighth Amendment claims against CDCR for damages and 23 injunctive relief were barred by Eleventh Amendment immunity); Pennhurst State Sch. & Hosp. v. 24 Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment immunity extends to state agencies). 25 26 D. Supervisory Liability Plaintiff names Governor Jerry Brown as a defendant, but states no allegations against that 27 defendant. Plaintiff also generally alleges, with little factual support, that Warden R. Fisher and 28 former Warden Ron Davis subjected him to cruel and unusual punishment and failed to ensure his 5 1 religious services needs were properly met. To the extent Plaintiff seeks to bring suit against 2 Warden R. Fisher, former Warden Ron Davis, and Governor Jerry Brown based on their roles as 3 supervisors, he may not do so. 4 Supervisory personnel may not be held liable under section 1983 for the actions of 5 subordinate employees based on respondeat superior or vicarious liability. Crowley v. Bannister, 6 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 7 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915–16 (9th Cir. 2012) 8 (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the 9 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 10 wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation 11 marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the latter 12 theory, supervisory liability exists even without overt personal participation in the offensive act if 13 supervisory officials implement a policy so deficient that the policy itself is a repudiation of 14 constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 15 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). 16 To state a claim against any supervisory defendant, Plaintiff must allege facts showing that 17 those defendants participated in or directed conduct that violated his constitutionally protected 18 rights. 19 20 E. Eighth Amendment Plaintiff alleges that he was subject to cruel and unusual punishments by S. Atkins, Warden 21 R. Fisher, and R. Davis in having to endure disrespect to his religious traditions, for his placement 22 in Ad. Seg. on two occasions for voicing issues about religious ceremonies, and for being 23 transferred without due process. 24 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 25 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2005). 26 Prison officials must provide prisoners with medical care and personal safety and must take 27 reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 83228 33, 114 S. Ct. at 1976 (1994) (internal citations and quotations omitted). 6 1 The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized 2 standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of 3 confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 4 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation, 5 medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A 6 prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, 7 the official’s act or omission must be so serious such that it results in the denial of the minimal 8 civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted 9 unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. 10 Plaintiff’s conclusory allegations that his religious traditions were disrespected, that he was 11 housed in Ad. Seg., and that he was transferred, do not show an objective denial of the minimal 12 civilized measure of life’s necessities. To the extent it appears Plaintiff is attempting to plead other 13 claims based on these allegations, however, he will be provided the standards for those claims, 14 below. 15 16 F. Due Process Violation Plaintiff states that he was denied Due Process by Defendants Atkins, Maroney, Fisher and 17 Davis when they lied to have him placed in Ad. Seg. Plaintiff also asserts that other unnamed 18 officials refused to do a thorough investigation of his ceremonies and complaints that Defendant 19 Atkins was unqualified. Plaintiff also complains that he was transferred without due process. 20 The Due Process Clause of the Fourteenth Amendment protects against the deprivation of 21 liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393, 22 162 L.Ed.2d 174 (2005). To state a claim for the deprivation of procedural due process, a plaintiff 23 must first identify a liberty interest for which the protection is sought. Id. at 221, 2393. Liberty 24 interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself 25 does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. 26 at 221–22 (citations and quotation marks omitted), and under state law, the existence of a liberty 27 interest created by prison regulations is determined by focusing on the nature of the condition of 28 confinement at issue. Id. at 222–23 (citing Sandin v. Conner, 515 U.S. 472, 481–84 (1995)). Liberty 7 1 interests created by prison regulations are generally limited to freedom from restraint which 2 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 3 prison life. Id. at 221 (quoting Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th 4 Cir. 2007). 5 6 1. False charges Regarding Plaintiff’s allegations that a lie was concocted to have him placed in Ad. Seg., 7 Plaintiff is informed that he has no constitutionally-guaranteed immunity from being falsely or 8 wrongly accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 9 F.2d 450, 452 (8th Cir. 1989). 10 With respect to prison disciplinary proceedings, the minimum procedural requirements that 11 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 12 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 13 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 14 taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 15 permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; 16 and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are 17 legally complex. Wolff v. McDonnel, 418 U.S. 539, 563-71 (1974). As long as the five minimum 18 Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 19 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 20 Plaintiff has not stated any claim that his due process was violated by any officials who 21 made false charges against him. 22 23 2. Investigation To the extent Plaintiff is dissatisfied with the outcome or adequacy of an investigation, that 24 is not a basis for a plausible due process claim. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th 25 Cir. 1985) (per curiam) (“[W]e can find no instance where the courts have recognized inadequate 26 investigation as sufficient to state a civil rights claim unless there was another recognized 27 constitutional right involved.”); Page v. Stanley, No. CV 11–2255 CAS (SS), 2013 WL 2456798, at 28 *8–9 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim alleging that officers failed to 8 1 conduct thorough investigation of plaintiff’s complaints because plaintiff “had no constitutional 2 right to any investigation of his citizen’s complaint, much less a ‘thorough’ investigation or a 3 particular outcome”). 4 5 3. Transfer The U.S. Supreme Court has specifically held that a transfer to a different prison does not 6 implicate a liberty interest, and thus does not implicate the Due Process clause. See Meachum v. 7 Fano, 427 U.S. 215, 224-25 (1976) (“Neither, in our view, does the Due Process Clause in and of 8 itself protect a duly convicted prisoner against transfer from one institution to another within the 9 state prison system.”). See also Quach v. Appleberry, Case No. CIV 2:08-00664-HWG-SOM, 2009 10 WL 1759635, at *5 (E.D. Cal. June 22, 2009) (“A transfer alone does not constitute a substantial 11 hardship; prisoners have no liberty interest in avoiding being transferred to another prison.”). 12 Nor does the fact that Plaintiff was transferred to a different prison away from his family 13 implicate any constitutional interest. Anderson v. Deleon, Case No. C 12-6055 SI PR, 2013 WL 14 892276, at *5 (N.D. Cal. Mar. 8, 2013) (“Loss of a prison job, assigning an inmate to a prison far 15 from his family and friends, and the like, which result from interprison transfers, are not 16 constitutionally protected interests.”) (citing Olim v. Wakinekona, 461 U.S. 238, 247 (1983)). 17 Accordingly, Plaintiff cannot state a due process claim merely because he was transferred to 18 a less desirable prison without adequate due process. 19 20 G. Free Exercise Clause Plaintiff complains that he was denied access to religious services, religious items and 21 freedom of expression. The Free Exercise Clause provides, “Congress shall make no law . . . 22 prohibiting the free exercise” of religion. U.S. CONST. amend I. Inmates retain the protections 23 afforded by the First Amendment, “including its directive that no law shall prohibit the free exercise 24 of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing Cruz v. Beto, 405 U.S. 25 319, 322 (1972) (per curiam)). The First Amendment is made applicable to state action by 26 incorporation through the Fourteenth Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 27 U.S. 1, 8 (1947). 28 /// 9 1 However, “[l]awful incarceration brings about the necessary withdrawal or limitation of 2 many privileges and rights, a retraction justified by the considerations underlying our penal 3 system.” Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). A prison regulation may 4 therefore impinge upon an inmate’s right to exercise his religion if the regulation is “reasonably 5 related to legitimate penological interests.” Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) 6 (citations omitted). Thus, prisons may lawfully restrict religious activities for security purposes and 7 other legitimate penological reasons. Turner v. Safley, 482 U.S. 78, 89–90 (1987); Pierce v. County 8 of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008). Furthermore, the Supreme Court has held that 9 generally-applicable laws that incidentally burden a particular religion’s practices do not violate the 10 First Amendment. Employment Div. v. Smith, 494 U.S. 872, 878 (1990). 11 Claims for violation of the Free Exercise Clause of the First Amendment are used to 12 challenge state or government statutes, regulations, and/or established policies. Thus, in order to 13 state a cognizable claim for their violation, a plaintiff must identify an allegedly offending statute, 14 regulation, or established policy. Under Turner, the Court considers: (1) whether the restriction has 15 a logical connection to the legitimate government interests invoked to justify it; (2) whether there 16 are alternative means of exercising the rights that remain open to the inmate; (3) the impact that 17 accommodation of the asserted constitutional right will have on other inmates, guards, and 18 institution resources; and (4) the presence or absence of alternatives that fully accommodate the 19 inmate’s rights at de minimis cost to valid penological interests. Turner, 483 U.S. at 89-91. 20 Regarding Plaintiff’s complaint that he is denied weekly attendance at the sweat lodge, it is 21 unclear whether Plaintiff is allowed any sweat lodge attendance. Attachments to his complaint 22 suggest that Plaintiff is allowed monthly sweat lodge access. It is also unclear what burden, if any, 23 his inability to attend sweat lodge weekly has on the free exercise of Plaintiff’s religion. De minimis 24 or minor-burdens on the free exercise of religion are not of a constitutional dimension, even if the 25 belief upon which the exercise is based is sincerely held and rooted in religious belief. See e.g., 26 Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir. 1999) (the unavailability of a non-pork tray for 27 inmate at 3 meals out of 810 does not constitute more than a de minimis burden on inmate’s free 28 exercise of religion). 10 1 In amending his complaint, Plaintiff must allege facts showing that the denial of being able 2 attend sweat lodge on a weekly basis imposes a substantial burden upon his religious practice. His 3 vague allegations that his personal visions, beliefs, values, or spirituality are not being respected are 4 insufficient. 5 Plaintiff also makes complaints about the adequacy of the clergy. Generally, prison officials 6 have no affirmative obligations to provide each inmate with the spiritual counselor of his choice. 7 See Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Reimers v. Oregon, 863 F.2d 630, 631-32 (9th 8 Cir. 1989); Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987). 9 Plaintiff also makes allegations in regards to not being provided with material to make 10 religious tools and artifacts needed for prayer and ceremonies. However, Plaintiff’s request for 11 relief and certain attachments to his complaint suggest that he is allowed certain religious material 12 that is on the CDCR Religious Property Matrix. Plaintiff must alleges facts specifying what 13 material he is being denied access to, whether the applicable restrictions serve any legitimate 14 government interest, and whether the restrictions substantially burden his religious practice. 15 16 H. Retaliation Plaintiff alleges that he was placed in Ad. Seg. for “voicing what is proper” about the 17 manner in which religious ceremonies and practices were conducted. To the extent Plaintiff seeks to 18 state a claim of retaliation, he has not done so. 19 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 20 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 21 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham 22 v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because 25 of (3) that prisoner’s protected conduct, and that such action did not reasonably advance a 26 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord 27 Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 F.3d at 1104; Brodheim v. 28 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 11 1 Here, Plaintiff does not state facts showing whether he was engaged in any protected 2 activity, that he was retaliated against because of that activity, who was involved, and how they 3 were involved. 4 5 I. Injunctive Relief Plaintiff seeks several forms of injunctive relief. Plaintiff is no longer housed at Valley State 6 Prison, where he alleges the incidents at issue occurred, and where the prison official defendants are 7 employed. Therefore, any relief he seeks against the officials at Valley State Prison is moot. See 8 Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (stating prisoner’s claims for 9 injunctive relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 10 (9th Cir. 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are 11 moot” when the prisoner has been moved and “he has demonstrated no reasonable expectation of 12 returning to [the prison]”)). 13 14 J. Appointment of Counsel Plaintiff has requested appointment of counsel to assist him in pursuing his claims. “There is 15 no constitutional right to appointed counsel in a section 1983 action.” Storseth v. Spellman, 654 16 F.2d 1349, 1353 (9th Cir. 1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn 17 in part on other grounds, 154 F.3d 952 n.1 (9th Cir. 1998). The Court cannot require an attorney to 18 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 19 the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). 20 However, in exceptional circumstances, counsel may be appointed for “indigent civil 21 litigants”. United States v. 30.64 Acres of Land More or Less, Situated in Klickitat County, State of 22 Washington, 795 F.2d 796, 799 (9th Cir. 1986); 28 U.S.C.A. § 1915(e)(1) (1996). Determining 23 whether exceptional circumstances are present requires weighing “the likelihood of success on the 24 merits,” and the plaintiff’s ability to “articulate his claims pro se in light of the complexity of the 25 legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting 26 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 27 In the present case, the Court does not find the required exceptional circumstances, and 28 Plaintiff has not identified any circumstances warranting appointment of counsel. Even if it is 12 1 assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, 2 if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar 3 cases almost daily from indigent prisoners proceeding without representation. 4 Plaintiff’s complaint is also being dismissed, with leave to amend, for the failure to state a 5 cognizable claim for relief. At this early stage in the proceedings, the Court cannot make a 6 determination that Plaintiff is likely to succeed on the merits. Additionally, based on a review of 7 the record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. 8 For these reasons, Plaintiff’s request for the appointment of counsel is HEREBY DENIED 9 without prejudice. 10 IV. 11 The Court finds that Plaintiff’s complaint fails to state a claim upon which relief may be Conclusion and Order 12 granted. The Court will grant Plaintiff an opportunity to cure the identified deficiencies which 13 Plaintiff believes, in good faith, are curable. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 14 If Plaintiff chooses to amend his complaint, he may not change the nature of this suit by adding 15 new, unrelated claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 16 2007) (no “buckshot” complaints). 17 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each 18 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 19 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be 20 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 21 (citations omitted). 22 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 23 Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself 24 without reference to the prior or superseded pleading.” Local Rule 220. 25 Based on the foregoing, it is HEREBY ORDERED that: 26 1. Plaintiff’s request for the appointment of counsel is denied; 27 2. Plaintiff’s complaint, filed September 29, 2016 (ECF No. 1), is dismissed with leave 28 to amend for failure to state a claim upon which relief can be granted; 13 1 3. The Clerk’s Office shall send to Plaintiff a civil rights complaint form; 2 4. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first 3 amended complaint or a notice of voluntary dismissal; and 4 5. If Plaintiff fails to comply with this order, this action will be dismissed for 5 failure to obey a court order and failure to state a claim. 6 7 IT IS SO ORDERED. 8 9 Dated: /s/ Barbara July 5, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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