Elbert v. Swarthout et al

Filing 29

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/29/2012 ORDERING that the allegations are sufficient to state a cognizable Eighth Amendment claim against defendants Lee and Arthur; defendants shall respond to the amended complaint in accordance with F.R.Civ.P. 12; plaintiff's request for appointment of counsel is DENIED; and RECOMMENDING that defendant Swarthout be dismissed from this action for failure to state a claim upon which relief may be granted. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VIRGIL ROBERT ELBERT,
Plaintiff,

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vs.

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No. 2:11-cv-1154 GEB EFB P

GARY SWARTHOUT, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). On September 24, 2012, the court granted defendants’ motion to dismiss

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plaintiff’s amended complaint for failure to state a claim, and granted plaintiff leave to amend.

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Before the court is plaintiff’s second amended complaint and request for appointment of counsel.

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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II.

Screening Order

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In the amended complaint, plaintiff names Swarthout, Lee, and Arthur as defendants in

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their individual capacities. Liberally construed and for the purposes of § 1915A screening, the

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complaint state cognizable Eighth Amendment claims for damages against defendants Lee and

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Arthur.

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Plaintiff’s allegations fail to state a cognizable claim against defendant Swarthout. A

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prison official violates the Eighth Amendment’s proscription of cruel and unusual punishment

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where he or she deprives a prisoner of the minimal civilized measure of life’s necessities with a

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“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). In
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recommending dismissal of plaintiff’s first amended complaint, the court informed plaintiff that

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his allegations did “not fare so well with regard to the subjective component” of an Eighth

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Amendment claim. Dckt. No. 26 at 6. Specifically, the court informed plaintiff that “a

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formulaic recitation of an element of [an] Eighth Amendment claim” was not sufficient because

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he needed to “include[ ] facts indicating how each defendant knew that, by placing plaintiff on

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[contraband surveillance watch], plaintiff would be subjected to painful, potentially unsanitary

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conditions and denied medical care.” Id. Plaintiff’s amended complaint does not cure this

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deficiency in his claim against defendant Swarthout.

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Plaintiff merely alleges that his placement on contraband surveillance watch required

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defendant Swarthout’s approval, but provides no factual support demonstrating that Swarthout

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possessed a sufficiently culpable state of mind in doing so. Dckt. No. 28 at 3. Moreover,

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plaintiff improperly attempts to impose liability on defendant Swarthout solely based on

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Swarthout’s supervisory role. See Dckt. No. 28 at 2, 7-8 (alleging Swarthout “was responsible

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for supervising, disciplining, and providing necessary training for all correctional officers” and

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that he violated plaintiff’s constitutional rights because he failed “to adequately supervise the

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correctional officers subordinate to him.”).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for

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the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Id. It is plaintiff’s responsibility to allege facts to state a plausible

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claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
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2009). Here, plaintiff has not sufficiently alleged that defendant Swarthout was personally

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involved in the alleged violation of plaintiff’s Eighth Amendment rights.

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Despite notice of the deficiencies and an opportunity to amend, plaintiff appears unable

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to state a cognizable claim for relief against defendant Swarthout, and further leave to amend is

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futile. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law,

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district courts are only required to grant leave to amend if a complaint can possibly be saved.

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Courts are not required to grant leave to amend if a complaint lacks merit entirely.”).

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III.

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Request for Counsel
Plaintiff also requests appointment of counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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IV.

Order and Recommendations

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Accordingly, IT IS HEREBY ORDERED that:

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1. The allegations in the pleading are sufficient at least to state a cognizable Eighth

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Amendment claim against defendants Lee and Arthur.

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2. Defendants shall respond to the amended complaint in accordance with Fed. R. Civ. P.
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3. Plaintiff’s request for appointment of counsel is denied.
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Further, IT IS HEREBY RECOMMENDED that defendant Swarthout be dismissed from
this action for failure to state a claim upon which relief may be granted.

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These findings and recommendations are 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 days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 29, 2012.

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