Milton v. Foulk

Filing 19

ORDER signed by Magistrate Judge Craig M. Kellison on 2/23/2016 DENYING plaintiff's 16 motion for appointment of counsel; and plaintiff shall SHOW CAUSE in writing, within 30 days, why this action should not be dismissed for failure to state a claim. (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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JOHNNY BEE MILTON,

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No. 2:15-CV-0537-CMK-P

Plaintiff,
vs.

ORDER

F. FOULK,
Defendant.
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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. 5). Also before the

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court is plaintiff’s motion for appointment of counsel (Doc. 16).

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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 complains of various problems with his criminal trial and

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seeks release from prison. When a state prisoner challenges the legality of his custody and the

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relief he seeks is a determination that he is entitled to an earlier or immediate release, such a

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challenge is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a

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petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also

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Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583,

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586 (9th Cir. 1995) (per curiam).

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

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

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

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Plaintiff will be directed to show cause in writing, within 30 days of the date of this order, why

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this action should not be dismissed for failure to state a claim. Plaintiff is warned that failure to

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respond to this order may result in dismissal of the action for the reasons outlined above, as well

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as for failure to prosecute and comply with court rules and orders. See Local Rule 110.

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Finally, plaintiff seeks the appointment of counsel. The United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent

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

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In certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. 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. For the reasons discussed above, plaintiff has no chance of success on the merits

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of this action. Given this, and given the lack of complexity of the legal issues involved, the court

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cannot at this time say that exceptional circumstances exist.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for appointment of counsel (Doc 16) is denied; and

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2.

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

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order why this action should not be dismissed for failure to state a claim.

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DATED: February 23, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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