McNeil v. Walker et al

Filing 18

ORDER signed by Circuit Judge Sidney Thomas on 4/3/09 ORDERING the request for appointment of counsel at this time is DENIED without prejudice; and action is dismissed with leave to file an Amended Complaint. Failure to file a second amended complaint by May 15 will result in dismissal of this action with prejudice. (Becknal, R)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

James M cNeil, Plaintiff, v. James Walker, et al., Defendants. _____________________________

08-CV-02234-SRT ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and ORDER DENYING WITHOUT PREJUDICE REQUEST FOR APPOINTMENT OF COUNSEL

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights complaint seeking damages fo r alleged co nstitutional violations. The Court dismisses plaintiff's claim with leave to amend. A federal co urt must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity o r officer o r emplo yee of a go vernment al entity. 28 U.S.C. § 1915A(a). In it s review, the Court must identify any cognizable claims and dismiss any claims that are frivo lo us, malicio us, fail to state a claim upon which relief may be granted o r which seek

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monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). DISCUSSION: McNeil's co mplaint alleges that R. Redding,1 an officer at New Fo lsom Sac-4 priso n, "intentio nally" hit him "in the bo ttom o f [his] lip" with "his can of pepper spray." Doc. #1, at 3. The "settled rule [is] that `the unnecessary and want on inflictio n of pain . . . constitutes cruel and unusual punishment fo rbidden by the Eighth Amendment,'" Martinez v. Stanf ord, 323 F.3d 1178, 1184 (9th Cir. 2003) (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)), and the Co urt is o therwise inclined to order Officer Redding to answer plaintiff's co mplaint. However, while plaintiff's co mplaint identifies the parties invo lved and alleges that Officer Redding hit him, the complaint lacks any info rmation as to when, o r where the alleged assault o ccurred. A plaintiff must allege acts with at least some degree o f particularity; the allegatio ns in a complaint must "give the defendant fair no tice of what the . . . claim is and the gro unds upon which it rest s." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court finds that, as written, plaint iff's allegations are t oo vague to pro perly no tify Officer Redding of the alleged violations. Accordingly, plaintiff's claim against Officer Redding is dismissed with leave to amend. To the extent plaintiff has also sued defendants James Walker, Watson, Canno n, Landers,

McNeil has no t provided the defendants' first names. Acco rdingly, the Co urt will refer to them so lely by their last name and first initial, where available.

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K.W. Prunty, Porter, Cash, and Hayes, he has failed to co nnect them to any alleged co nstitutional violation. A defendant is liable only if he "play[ed] an affirmative part in the alleged deprivat ion o f const itut ional right s." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Ho wever, McNeil appears to acknowledge that o nly Officer Redding is a "true defendant." (Doc. #1, at 2). Acco rdingly, plaint iff's claim against the remaining defendants is dismissed without prejudice. Any amended complaint must affirmatively link these defendants to an alleged vio lation of plaint iff's constitutio nal rights. Plaintiff is advised that an amended co mplaint supercedes the o riginal co mplaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). Plaintiff is warned that "[a]ll causes of act ion alleged in an original complaint which are not alleged in an amended co mplaint are waived." King, 814 F.2d at 567. REQUEST FOR APPOINTMENT OF COUNSEL Plaintiff has also filed a request for appo intment of co unsel. There is, however, no constitutio nal right to co unsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 co nfers on a district court o nly the po wer to "request" that counsel represent a litigant who is pro ceeding in fo rma pauperis. 28 U.S.C. § 1915(e)(1). This does not give the courts the power to make "co ercive appo intments o f counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). The co urt may ask co unsel to represent an indigent litigant under § 1915 only in

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"exceptio nal circumst ances," the determinatio n of which requires an evaluation of bo th (1) the likelihoo d of success on the merit s and (2) the ability of the plaintiff t o articulat e his claims pro se in light o f the co mplexity of the legal issues involved. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Bot h o f these factors must be viewed to gether before reaching a decision on a request for co unsel under § 1915. See id. The Court concludes that appointment of co unsel is not necessary at this time. The proceedings are at an early stage and it is premature for the Co urt to determine Plaintiff's likelihoo d of success on the merit s. Acco rdingly, the request fo r appointment o f counsel at this time is DENIED witho ut prejudice. If the Court later decides that appointment o f counsel is warranted, then it can seek vo lunteer co unsel to agree t o represent Plaintiff pro bo no. CONCLUSION For the foregoing reasons, McNeil's actio n is dismissed with leave to file an amended complaint. Any amended complaint must provide Officer Redding fair notice of McNeil's allegations. Addit ionally, any amended complaint must affirmatively co nnect each remaining defendant to the alleged constitutional violat ion. Failure to file a seco nd amended co mplaint by May 15 will result in dismissal of this actio n with prejudice. IT IS SO ORDERED. DATED: April 3, 2009 /s/ Sidney R. Thomas Sidney R. Thomas, United States Circuit Judge Sitting by Designation ______________________________________

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