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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARL PERKINS,
Plaintiff,

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ORDER

v.

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Case No. 1:17-cv-0579-MJS (PC)

(1) DISMISSING COMPLAINT WITH
LEAVE TO AMEND; AND

M. PORTER, et al.,

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(2) DENYING MOTION TO APPOINT
COUNSEL

Defendants.

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(ECF Nos. 1, 7)

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THIRTY (30) DAY DEADLINE

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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

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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

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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.”
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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).
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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).
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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

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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.
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Plaintiff’s allegations can be fairly summarized as follows:

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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.
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Presumably after this incident, CO Gomez asked CO Porter to “unleash the
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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

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A.

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“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).
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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.
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In the Ninth Circuit, dismissal of a prisoner civil rights action for failure to exhaust
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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).
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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.
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B.

First Amendment Retaliation

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“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).
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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”).
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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

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

28 will seek volunteer counsel only in the most serious and exceptional cases.
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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).
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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.
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Conclusion

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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.
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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).
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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.
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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
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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).
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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.
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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s Complaint (ECF No. 1) is dismissed with leave to amend;

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2.

Plaintiff’s motion for appointment of counsel (ECF No. 7) is DENIED;

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3.

Plaintiff shall file a First Amended Complaint within thirty days from the

10 date of this Order; and
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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.
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IT IS SO ORDERED.
Dated:

April 26, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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