Gonzalez-Cuevas v. Foulk, et al

Filing 19

ORDER signed by Magistrate Judge Craig M. Kellison on 2/10/2014 ORDERING plaintiff to SHOW CAUSE in writing within 30 days why this action should not be dismissed for failure to state a claim; and plaintiff's 3 motion for the appointment of counsel is DENIED. (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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ALFONSO GONZALEZ-CUEVAS,

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No. 2:13-CV-1777-CMK-P

Plaintiff,

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vs.

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F. FOULK, et al.,

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ORDER

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). Also before the

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court is plaintiff’s motion for the appointment of counsel (Doc. 3). Plaintiff has consented to

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Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served

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or appeared in the action.

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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In this case, plaintiff names as defendants the Chief Deputy Warden and Associate

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Warden. He claims that, by virtue of defendants’ review of his inmate grievances, they knew that

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a “R-Suffix” was inappropriately placed in his file. According to plaintiff, the “R-Suffix”

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classification indicates a conviction for a sex offense and that such a classification creates a

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safety risk “. . . if that R. suffix . . . is discovered by other prisoners.” Plaintiff has not, however,

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alleged that his classification has become known to other prisoners. While plaintiff does allege

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that he has been attacked on numerous prior occasions, he does not allege that such attacks were

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related to his classification or, more importantly, that either of the named defendants was in a

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position to prevent the prior attacks or even knew about prior attacks.

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only
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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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Under these principles, prison officials have a duty to take reasonable steps to

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protect inmates from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir.

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1982); Farmer, 511 U.S. at 833. Liability exists only when two requirements are met:

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(1) objectively, the prisoner was incarcerated under conditions presenting a substantial risk of

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serious harm; and (2) subjectively, prison officials knew of and disregarded the risk. See Farmer,

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511 U.S. at 837. The very obviousness of the risk may suffice to establish the knowledge

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element. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not

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liable, however, if evidence is presented that they lacked knowledge of a safety risk. See Farmer,

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511 U.S. at 844. The knowledge element does not require that the plaintiff prove that prison

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officials know for a certainty that the inmate’s safety is in danger, but it requires proof of more

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than a mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

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Finally, the plaintiff must show that prison officials disregarded a risk. Thus, where prison

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officials actually knew of a substantial risk, they are not liable if they took reasonable steps to

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respond to the risk, even if harm ultimately was not averted. See Farmer, 511 U.S. at 844.

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In this case, plaintiff has not alleged any more than a mere suspicion of danger.

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Because it does not appear possible that the deficiencies identified herein can be cured by

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amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff shall

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show cause in writing, within 30 days of the date of this order, why this action should not be

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dismissed for failure to state a claim. Plaintiff is warned that failure to respond to this order may

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result in dismissal of the action for the reasons outlined above, as well as for failure to prosecute
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and comply with court rules and orders. See Local Rule 110.
Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. First, though plaintiff alleges language barriers, he has been able up to this point

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to articulate his claims. Second, the court finds that the legal issues involved in this case are not

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overly complex. Finally, for the reasons discussed above, the court finds little likelihood of

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success on the merits because plaintiff has not stated a claim upon which relief can be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff shall show cause in writing within 30 days of the date of this

order why this action should not be dismissed for failure to state a claim; and
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Plaintiff’s motion for the appointment of counsel (Doc. 3) is denied.

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DATED: February 10, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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