Perkins v. Porter et al

Filing 16

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and Denying 7 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 04/26/2017. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CARL PERKINS, Plaintiff, 11 ORDER v. 12 13 Case No. 1:17-cv-0579-MJS (PC) (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND M. PORTER, et al., 14 (2) DENYING MOTION TO APPOINT COUNSEL Defendants. 15 (ECF Nos. 1, 7) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. He has consented to magistrate judge 20 jurisdiction. Plaintiff’s complaint is before the Court for screening. 21 I. Screening Requirement 22 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any 23 portion thereof, that may have been paid, the court shall dismiss the case at any time if 24 the court determines that . . . the action or appeal . . . fails to state a claim upon which 25 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 26 II. Pleading Standard 27 Section 1983 “provides a cause of action for the deprivation of any rights, 28 privileges, or immunities secured by the Constitution and laws of the United States.” 1 1 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 2 Section 1983 is not itself a source of substantive rights, but merely provides a method 3 for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 4 393-94 (1989). 5 To state a claim under § 1983, a plaintiff must allege two essential elements: 6 (1) that a right secured by the Constitution or laws of the United States was violated and 7 (2) that the alleged violation was committed by a person acting under the color of state 8 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 9 1243, 1245 (9th Cir. 1987). 10 A complaint must contain “a short and plain statement of the claim showing that 11 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 12 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 14 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 15 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to 16 relief that is plausible on its face.” Id. Facial plausibility demands more than the mere 17 possibility that a defendant committed misconduct and, while factual allegations are 18 accepted as true, legal conclusions are not. Id. at 677-78. 19 III. Plaintiff’s Allegations 20 At all times relevant to this action, Plaintiff was incarcerated at California City 21 Correctional Facility in California City, California. He names as Defendants Correctional 22 Officers (“CO”) Porter, Gomez, Askerson, and Cortez. 23 Plaintiff’s allegations can be fairly summarized as follows: 24 On February 16, 2017, CO Gomez entered the B-Section pod with legal mail for 25 Plaintiff and motioned for Plaintiff to come to him. Plaintiff was on a collect call at the 26 time and motioned for CO Gomez to come to him instead. CO Gomez left without giving 27 Plaintiff his mail. Plaintiff received his mail the next day from another officer. 28 Presumably after this incident, CO Gomez asked CO Porter to “unleash the 2 1 (hounds)” on Plaintiff. CO Porter then left word for CO Askerson and CO Cortez to 2 search Plaintiff’s cell. On February 18, 2017, these two Defendants searched the cell. 3 Plaintiff admits that he did not exhaust his administrative remedies prior to filing 4 suit. 5 IV. Discussion 6 A. 7 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate Exhaustion of Administrative Remedies 8 exhaust ‘such administrative remedies as are available’ before bringing suit to challenge 9 prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (June 6, 2016) (quoting 42 10 U.S.C. § 1997e(a)). However, “an inmate is required to exhaust those, but only those, 11 grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action 12 complained of.’” Ross, at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). 13 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” 14 Jones v. Bock, 549 U.S. 199, 204 (2007). 15 The Supreme Court has identified only “three kinds of circumstances in which an 16 administrative remedy, although officially on the books, is not capable of use to obtain 17 relief.” Ross, at 1859. These circumstances are as follows: (1) the “administrative 18 procedure ... operates as a simple dead end – with officers unable or consistently 19 unwilling to provide any relief to aggrieved inmates;” (2) the “administrative scheme...[is] 20 so opaque that it becomes, practically speaking, incapable of use ... so that no ordinary 21 prisoner can make sense of what it demands;” and (3) “prison administrators thwart 22 inmates from taking advantage of a grievance process through machination, 23 misrepresentation, or intimidation.” Id. at 1859-60 (citations omitted). Other than these 24 circumstances demonstrating the unavailability of an administrative remedy, the 25 mandatory language of 42 U.S.C. § 1997e(a) “foreclose[es] judicial discretion,” which 26 “means a court may not excuse a failure to exhaust, even to take [special] 27 circumstances into account.” Ross, 136 S. Ct. at 1856-57. 28 In the Ninth Circuit, dismissal of a prisoner civil rights action for failure to exhaust 3 1 administrative remedies must generally be decided pursuant to a motion for summary 2 judgment under Rule 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 3 1162 (9th Cir. 2014) (en banc). The only exception is “[i]n the rare event that a failure to 4 exhaust is clear on the face of the complaint.” Id. at 1166 (authorizing defendant to 5 move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6)); see also Jones, 549 U.S. at 6 215 (exhaustion is not a pleading requirement but an affirmative defense that, if 7 apparent on the face of the complaint, may support dismissal); Wyatt v. Terhune, 315 8 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner's concession to nonexhaustion is a valid 9 ground for dismissal, so long as no exception to exhaustion applies.”), overruled on 10 other grounds by Albino, supra, 747 F.3d at 1166; Vaden v. Summerhill, 449 F.3d 1047, 11 1051 (9th Cir. 2006) (“Because Vaden did not exhaust his administrative remedies prior 12 to sending his complaint to the district court, the district court must dismiss his suit 13 without prejudice.”) (citing Wyatt, 315 F.3d at 1120). 14 By Plaintiff’s own admission, he did not exhaust his administrative remedies 15 before initiating this case. Though he contends exhaustion should not be required 16 “where the administrative remedy is inadequate, pursuit of the remedy would be futile, 17 or delay would result in irreparable injury,” he offers no facts suggesting any of those 18 circumstances are applicable to this action. Accordingly, Plaintiff’s complaint must be 19 dismissed with leave to amend. If Plaintiff chooses to amend, he must allege specific 20 facts to show that one of the three exceptions to the mandatory exhaustion requirement 21 apply to this case. 22 B. First Amendment Retaliation 23 “Within the prison context, a viable claim of First Amendment retaliation entails 24 five basic elements: (1) An assertion that a state actor took some adverse action 25 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 26 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 27 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 28 F.3d 559, 567-68 (9th Cir. 2005). 4 1 The second element focuses on causation and motive. See Brodheim v. Cry, 584 2 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a 3 “‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting 4 Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can 5 be difficult to establish the motive or intent of the defendant, a plaintiff may rely on 6 circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that 7 a prisoner established a triable issue of fact regarding prison officials’ retaliatory motives 8 by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 9 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) 10 (“timing can properly be considered as circumstantial evidence of retaliatory intent”). 11 It appears that Plaintiff’s First Amendment retaliation claim is based on a cell 12 search conducted by CO Askerson and CO Cortez two days after Plaintiff refused CO 13 Gomez’s non-verbal request to come to him to retrieve legal mail. Linking this conduct is 14 Plaintiff’s unsupported claim that CO Gomez told CO Porter to “release the (hounds)” on 15 Plaintiff, and CO Porter then told CO Askerson and CO Cortez to search Plaintiff’s cell. 16 These allegations are far too vague and speculative to suggest a retaliatory motive for 17 the cell search, particularly on the part of the two Defendants who actively participated 18 in the search. This claim must therefore be dismissed. 19 V. Motion for Appointment of Counsel 20 Plaintiff has also requested the appointment of counsel. Plaintiff does not have a 21 constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 22 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 23 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the 24 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 25 circumstances the court may request the voluntary assistance of counsel pursuant to 26 section 1915(e)(1). Rand, 113 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the court 28 will seek volunteer counsel only in the most serious and exceptional cases. 5 In 1 determining whether Aexceptional circumstances exist, the district court must evaluate 2 both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate 3 his claims pro se in light of the complexity of the legal issues involved.” Id. (internal 4 quotation marks and citations omitted). 5 In the present case, the Court does not find the required exceptional 6 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that 7 he has made serious allegations which, if proved, would entitle him to relief, his case is 8 not exceptional. This Court is faced with similar cases almost daily. Further, at this early 9 stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to 10 succeed on the merits, and based on a review of the record in this case, the Court does 11 not find that Plaintiff cannot adequately articulate his claims. Id. 12 VI. Conclusion 13 Plaintiff’s complaint will be dismissed because it fails to state a claim and 14 because Plaintiff admits that he did not exhaust administrative remedies. 15 The Court will, however, grant Plaintiff the opportunity to file an amended 16 complaint to cure noted defects, to the extent he believes in good faith he can do so. 17 Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, 18 he must demonstrate that the alleged acts resulted in a deprivation of his constitutional 19 rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual matter . . . to 20 ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 21 555). 22 Plaintiff should note that although he has been given the opportunity to amend, it 23 is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 24 Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully read this screening order 25 and focus his efforts on curing the deficiencies set forth above. 26 If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but 27 it must state what each named defendant did that led to the deprivation of Plaintiff’s 28 constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the 6 1 “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative 2 level. . . .” Twombly, 550 U.S. at 555 (citations omitted). 3 Finally, an amended complaint supersedes the prior complaint, see Loux v. 4 Rhay, 375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without 5 reference to the prior or superseded pleading,” Local Rule 220. 6 Accordingly, it is HEREBY ORDERED that: 7 1. Plaintiff’s Complaint (ECF No. 1) is dismissed with leave to amend; 8 2. Plaintiff’s motion for appointment of counsel (ECF No. 7) is DENIED; 9 3. Plaintiff shall file a First Amended Complaint within thirty days from the 10 date of this Order; and 11 4. Plaintiff’s failure to file an amended complaint within thirty days will result 12 in the dismissal of this action without prejudice for failure to prosecute and failure to 13 comply with a court order. 14 15 16 IT IS SO ORDERED. Dated: April 26, 2017 /s/ 17 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 7

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