Williams v. Batra et al

Filing 21

ORDER DIRECTING Clerk of the Court to ASSIGN a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of the 8 Action for Failure to State a Cognizable Claim for Relief and Denying Plaintiff's 19 Motion for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 2/20/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL B. WILLIAMS,

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Plaintiff,
v.

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SANJEEV BATRA, et al.,

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Defendants.

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Case No.: 1:17-cv-00732-SAB (PC)
ORDER DIRECTING CLERK OF THE COURT TO
ASSIGN A DISTRICT JUDGE TO THIS ACTION
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THE
ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF AND
DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
[ECF Nos. 8, 19]

Plaintiff Michael B. Williams is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed the original complaint on May 26, 2017. On August 2, 2017, the Court

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dismissed Plaintiff’s complaint with leave to amend for failure to state a cognizable claim for relief.

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(ECF No. 7.) Plaintiff filed a first amended complaint on August 17, 2017. (ECF No. 8.) On August

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21, 2017, the undersigned dismissed the action for failure to state a cognizable claim for relief and

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judgment was entered. Plaintiff filed a notice of appeal on September 5, 2017. (ECF No. 13.)

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On January 25, 2018, the Ninth Circuit Court of Appeals vacated and remanded the action to

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this Court. (ECF No. 18.) Specifically, the Ninth Circuit found that because all the parties, including

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unserved defendants, had not consented to proceed before the magistrate judge, the order was vacated

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and the case was remanded for further proceedings pursuant to Williams v King, 875 F.3d 500, 503-04

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(9th Cir. 2017). (Id.)

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I.

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SCREENING REQUIREMENT

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court

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shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). The pleadings of detainees are construed liberally and are afforded the

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benefit of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe v. Pliler, 627

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F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading standard . . . applies only to a plaintiff's

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factual allegations,” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), and “a liberal interpretation of

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a civil rights complaint may not supply essential elements of the claim that were not initially pled,”

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Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Also, while a plaintiff’s allegations are taken as true,

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courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

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677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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

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factual 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, 129 S. Ct. at 1949 (quotation marks omitted); Moss v.

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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.
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COMPLAINT ALLEGATIONS

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Plaintiff originally filed a civil rights complaint against medical doctor Defendant Sanjeev

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Batra on December 30, 2016, alleging unlawful confinement in the hospital medical unit, improper

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medical treatment, and retaliation. The action was dismissed on March 6, 2017, which is pending

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appellate review.

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On April 6, 2017, Defendant Batra conspired with Defendant Underwood, and various other

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hospital officials to violate Plaintiff’s constitutional rights by mixing his Lantus and Humalog insulins

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with other unknown chemicals in retaliation for Plaintiff’s prior complaint regarding the improper

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medical treatment.

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On April 23, 2017, Plaintiff got into a head argument with Defendant Underwood regarding his

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tempering with his insulins. On April 24, 2017, Plaintiff appeared before the unit-2, team committee

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to gain the return of his access to his hall-card which was put on hold by Underwood on April 23,

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2017. The only question asked of Plaintiff by hospital Psychologist, Brett Follett, is whether Plaintiff

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was going to physically retaliate against Underwood for his involvement in mixing Plaintiff’s insulins.

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Plaintiff seeks punitive damages in the amount of fifteen million dollars.

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III.

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DISCUSSION

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A.

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A viable claim of retaliation by a civil detainee entails five elements: (1) the plaintiff engaged

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in protected conduct; (2) an assertion that a state actor took some adverse action against the plaintiff;

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(3) the adverse action was “because of” the plaintiff’s protected conduct (i.e., “retaliatory motive”);

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(4) the adverse action “would chill or silence a person or ordinary firmness from future First

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Amendment activities;” and (5) the action did not reasonably advance a legitimate correctional goal.

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See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Retaliation

Retaliation is not established simply by showing adverse action by a defendant after protected

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speech; rather, Plaintiff must allege sufficient facts to plausibly suggest a connection between the two.

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See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the

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logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). Therefore,
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although “the timing and nature” of an allegedly adverse action may “properly be considered” as

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circumstantial evidence of retaliatory motive, the official alleged to have retaliated must also be

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alleged to have been aware of the prisoner’s protected conduct. See Sorrano’s Gasco, Inc. v. Morgan,

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874 F.3d 1310, 1315-16 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995); Wood v.

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Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (noting that “mere speculation that defendants acted out of

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retaliation is not sufficient” and affirming judgment where there was “nothing in the record to indicate

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[defendant] even knew about [an] earlier [law]suit.”)

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Plaintiff’s conclusory claim of retaliatory motive in allegedly mixing his insulins is insufficient
to give rise to a claim for retaliation. There are no facts from which the Court can infer that

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Defendants acted out of retaliation. Plaintiff’s bare assertion that he was retaliated against falls short

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of supporting the claim that adverse action was taken against him. Indeed, Plaintiff’s prior complaint

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regarding misconduct by Defendant Batra was dismissed for failure to state a cognizable claim for

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relief. Thus, at the time of the alleged retaliation the action had been dismissed by the Court on

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March 6, 2017, for failure to state a cognizable claim for relief. Plaintiff’s claim is not plausible

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because it is based solely on the unsupported assumption that Defendant Batra knew about the

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previous lawsuit. Accordingly, Plaintiff fails to state a cognizable retaliation claim.

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B.

Motion for Appointment of Counsel

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Plaintiff seeks appointment of counsel in this action. Plaintiff does not have a constitutional

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right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and

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the Court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances the court may request the voluntary assistance of

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counsel pursuant to 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 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 on the

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

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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 if it

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is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases

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almost daily.
While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and his

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incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of

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further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the

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facts necessary to support the case.”) The test is whether exceptional circumstances exist and here,

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they do not. In particular, for the reasons set forth above, the Court finds that Plaintiff has failed to

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state a claim upon which relief may be granted. As a result, the Court is precluded from making a

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finding that Plaintiff is likely to succeed on the merits. Accordingly, Plaintiff’s motion for

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appointment of counsel is denied.

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IV.

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CONCLUSION AND RECOMMENDATION

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Plaintiff’s first amended complaint fails to state a cognizable claim for relief. Plaintiff was

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previously notified of the applicable legal standards and the deficiencies in his pleading, and despite

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guidance from the Court, Plaintiff’s first amended complaint is largely identical to the original

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complaint. Based upon the allegations in Plaintiff’s original and first amended complaint, the Court is

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persuaded that Plaintiff is unable to allege any additional facts that would support a claim for a due

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process violation or access to the court, and further amendment would be futile. See Hartmann v.

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CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend when

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amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds that

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further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v.

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Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for appointment of

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counsel (ECF No. 19), is denied.

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Further, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district judge to

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this action.
Finally, for the reasons explained above, IT IS HEREBY RECOMMENDED that this action

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be dismissed for Plaintiff’s failure to state a claim for which relief may be granted.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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February 20, 2018
UNITED STATES MAGISTRATE JUDGE

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