Ruiz v. Curry

Filing 11

SCREENING ORDER GRANTING Plaintiff Leave to File an Amended Complaint, signed by Magistrate Judge Stanley A. Boone on 1/10/18. (Amended Complaint due 30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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Plaintiff,

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v.
J. CURRY,
Defendant.

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Case No. 1:17-cv-01454-DAD-SAB (PC)
SCREENING ORDER GRANTING PLAINTIFF
LEAVE TO FILE AN AMENDED COMPLAINT
[ECF No. 1]

Plaintiff Rogelio May Ruiz is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s complaint, filed on October 18, 2017.

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I.

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SCREENING REQUIREMENT

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

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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 legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the

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deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not

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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS
A portion of Plaintiff’s complaint is written in Spanish. Plaintiff is advised that all federal

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court filings must be in the English language. The Court cannot provide Plaintiff with translated

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documents, nor will it translate his documents from Spanish to English. While Plaintiff submits that

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he has difficulty with the English language, it is in the discretion of prison officials to best determine

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how to ensure that “inmate with language problems have a reasonably adequate opportunity to file

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nonfrivolous legal claims challenging their convictions or conditions of confinement.” Lewis v.

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Carey, 518 U.S. 343, 356 (1996). Plaintiff should seek assistance at his institution for translation

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services, and is not precluded from filing any motion for a reasonable extension of time to comply

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with this order, if necessary.
In the portion of the complaint that is written in English, the Court will provide Plaintiff with

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what appears to be the applicable legal standard for his claims and grant him leave to amend the

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complaint.

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III.

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DISCUSSION

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A.

Linkage under Section 1983

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada

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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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B.

Loss of Personal Property

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The Due Process Clause of the Fourteenth Amendment of the United States Constitution

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protects Plaintiff from being deprived of property without due process of law, Wolff v. McDonnell,

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418 U.S. 539, 5563 (1974), and Plaintiff has a protected interest in his personal property, Hansen v.

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May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property are

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actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984);

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Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, the Due Process Clause is not violated

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by the random, unauthorized deprivation of property so long as the state provides an adequate post-

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deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813,

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816-17 (9th Cir. 1994). Plaintiff has an adequate post-deprivation remedy under California law and

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therefore, he may not pursue a due process claim arising out of the unlawful confiscation of his

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personal property. Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code §§ 810-895).

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In this instance, Plaintiff has alleged an unauthorized deprivation of his personal and legal

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property, and Plaintiff has an adequate post-deprivation remedy under California law and therefore, he

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may not pursue a due process claim arising out of the unlawful confiscation of his personal property.
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Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code §§ 810-895). Accordingly, Plaintiff fails to state a

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cognizable constitutional claim based on the alleged confiscation of his personal property.

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C.

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). The right of access to the

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courts is merely the right to bring to court a grievance the inmate wishes to present, and is limited to

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direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a

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claim, the plaintiff must have suffered an actual injury by being shut out of court. Christopher v.

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Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at 655.

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Access to the Courts

Plaintiff merely alleges that he has been denied access to the Court because his legal property

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was confiscated. There are simply no allegations that Plaintiff suffered actual injury. Accordingly,

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Plaintiff fails to state a cognizable claim for relief.

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D.

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The Equal Protection Clause requires that persons who are similarly situated be treated alike.

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City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California

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Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021,

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1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff

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must show that Defendants intentionally discriminated against him based on his membership in a

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protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d

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1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

Equal Protection

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D.

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In his complaint, Plaintiff seeks appointment of counsel because he is Spanish speaking and

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Appointment of Counsel

does not understand or speak English.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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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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 record reflects that Plaintiff is able

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to articulate his claims and for the most part has presented them in English. Circumstances common

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to most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Furthermore, at this early stage in the litigation, the Court cannot make any determination that Plaintiff

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is likely to succeed on the merits. Therefore, the Court does not find exceptional circumstances to

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warrant a search for voluntary counsel in this case.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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III.

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CONCLUSION AND ORDER

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For the reasons discussed, Plaintiff shall be granted leave to file an amended complaint to cure

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the deficiencies identified in this order. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Any such first amended complaint shall not exceed twenty-five (25) pages in length, exclusive of

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exhibits.

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at

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678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to

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relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Further,
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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George, 507 F.3d at 607 (no “buckshot” complaints). Finally, Plaintiff is advised that an

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amended complaint supersedes the original complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927

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(9th Cir. 2012). Therefore, Plaintiff’s amended complaint must be “complete in itself without

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reference to the prior or superseded pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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3.

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If Plaintiff fails to file an amended complaint in compliance with this order, the Court

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will recommend to the district judge that this action be dismissed consistent with the

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reasons stated in this order.

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IT IS SO ORDERED.

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Dated:

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January 10, 2018
UNITED STATES MAGISTRATE JUDGE

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