Scott v. CDCR

Filing 19

ORDER signed by Magistrate Judge Deborah Barnes on 06/15/17 ordering plaintiff's motion for an extension of time 15 is granted. Within 30 days of the date of this order, plaintiff may file an amended complaint. Plaintiff's 4/24/17 motion for the appointment of counsel 15 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ED’JUAN SCOTT,

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Plaintiff,

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No. 2:15-cv-0578 DB P

v.

ORDER

CDCR,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff appears to be a mentally ill inmate who claims he was

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ordered to be treated with electro-shock therapy in 2011 and continues to be subjected to electro-

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shock therapy “remotely.” Plaintiff is currently incarcerated at California State Prison –

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Sacramento (“CSP-Sac”). Plaintiff consented to the jurisdiction of a magistrate judge in this case.

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(See ECF No. 7.) Before the court are plaintiff’s motions for an extension of time to file an

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amended complaint and for the appointment of counsel asserting that he is unable to understand

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any of the “further proceedings”. (ECF No. 15.)

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BACKGROUND
On screening, the court found plaintiff failed to state a potentially cognizable claim for

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relief. (Mar. 1, 2017 Order (ECF No. 11).) The court permitted plaintiff the opportunity to file

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an amended complaint and, on April 11, granted plaintiff an extension of time to file one.
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In a document filed April 24, plaintiff seeks the appointment of counsel and another

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extension of time, apparently to file an amended complaint. (ECF No. 15.) Therein, plaintiff

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states that the sole purpose of his complaint is the fact that he has been on “remote shock therapy”

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since 2011 against his will. In light of plaintiff’s allegations that he is being subjected to electro-

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shock therapy, and in order to determine whether this case should proceed, on May 23 the court

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directed the Attorney General’s Office to address plaintiff’s allegations concerning his mental

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health care.

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On June 6, the Attorney General’s Office filed a response to the court’s May 23 order.
(ECF No. 18.) Therein, the state explains: (1) the Contra Costa County Superior Court has no

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record of ordering plaintiff to undergo electro-shock therapy; (2) plaintiff has not undergone

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electro-shock therapy during his incarceration at CSP-Sac; (3) plaintiff is not currently

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undergoing electro-shock therapy; and (4) electro-shock therapy is not administered at CSP-Sac.

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FILING AN AMENDED COMPLAINT

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According to plaintiff, the sole purpose of this action is to challenge involuntary and

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“remote” electro-shock therapy. The court recognizes that it is required to accept the allegations

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of the complaint as true for purposes of screening actions brought in forma pauperis. See Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). However, the court is not required to

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accept as true those factual contentions that are “clearly baseless” or describe “fantastic or

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delusional scenarios.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). A finding that an

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assertion is “factually frivolous” is appropriate where “the facts alleged rise to the level of the

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irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court

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requested a response from the state about plaintiff’s allegations to determine whether there was

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any possibility plaintiff was receiving some sort of electro-shock therapy. The court considered

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that plaintiff’s description of the therapy as “remote” might be incorrect. The state’s response

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shows that such therapy is unavailable at CSP-Sac and plaintiff has not been subjected to it during

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his incarceration there. The court finds plaintiff’s allegations that he has been, or currently is,

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being subjected to “remote shock therapy” to be incredible. Accordingly, plaintiff may not

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include those allegations in an amended complaint.
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It is not clear from plaintiff’s April 24 motion whether plaintiff still wishes to challenge

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involuntary shock therapy he claims was administered previously. While the state presents

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evidence showing that plaintiff was never ordered to undergo such therapy, this court may not, at

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the screening stage, make a factual determination of an allegation that is not, on its face, fantastic

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or irrational. See Denton, 504 U.S. at 33 (“improbable allegations” should not be dismissed on

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screening).

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The court will provide plaintiff an opportunity to file an amended complaint to attempt to

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state any claims he may have regarding the past administration of electro-shock therapy. Plaintiff

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is advised to heed the legal standards set out in the court’s March 1 screening order to state a

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claim. Any claim must be supported by a short, plain statement of the facts supporting it. Fed. R.

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Civ. P. 8(a). Plaintiff is also advised that he must identify the correct defendant for any claims

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involving the past administration of electro-shock therapy. The correct defendant or defendants

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are those who plaintiff can show are responsible for the administration of any involuntary electro-

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shock therapy and intended to cause plaintiff harm. Finally, plaintiff is warned that by signing an

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amended complaint, plaintiff certifies he has made reasonable inquiry and has evidentiary support

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for his allegations, and for violation of this rule the court may impose sanctions sufficient to deter

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repetition by plaintiff or others. Fed. R. Civ. P. 11.

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MOTION FOR THE APPOINTMENT OF COUNSEL

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In his April 24 filing, plaintiff also seeks the appointment of counsel. The United States

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

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

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional

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circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and

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the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

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issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v.

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Look, 718 F.2d 952, 954 (9th Cir. 1983). At this point, the court does not find exceptional

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circumstances warrant the appointment of counsel for plaintiff.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion for an extension of time (ECF No. 15) is granted. Within thirty

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days of the date of this order, plaintiff may file an amended complaint. Plaintiff is

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again advised that such a complaint must comply with the requirements set forth in the

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March 1 screening order and with those set forth above. If plaintiff fails to file a

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timely amended complaint, this action will be dismissed without prejudice.

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2. Plaintiff’s April 24, 2017 motion for the appointment of counsel (ECF No. 15 ) is
denied.
Dated: June 15, 2017

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DLB:9
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