Chastang v. Cervantes et al

Filing 31

ORDER signed by Magistrate Judge Deborah Barnes on 3/16/2017 DENYING plaintiff's 29 request for the appointment of counsel and plaintiff's 30 request for forms. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LOTICOL CHASTANG,

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No. 2:15-cv-0961 DB P

Plaintiff,
v.

ORDER

E. CERVANTES, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges excessive force by defendants in violation of the Eighth

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Amendment. Before the court are plaintiff’s requests for the appointment of counsel and for

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forms to amend his complaint. For the reasons set forth below, both requests will be denied.

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MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has requested the appointment of counsel because he is having trouble obtaining

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evidence and does not have access to the library. (ECF No. 29.) The United States Supreme

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

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in § 1983 cases. 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). 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). In the present case, the court does not find

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the required exceptional circumstances. However, the court is concerned about plaintiff’s
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statement that he has no access to the law library. If plaintiff feels he is being denied reasonable

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access to the law library in order to proceed with this case, he should file a separate request

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explaining why that is so. Plaintiff’s request for the appointment of counsel will be denied.

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REQUEST FOR FORMS

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Plaintiff filed a request for “forms” to “add third, fourth and fifth defendants to the above

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case.” (ECF No. 30.) Plaintiff is advised that the court does not have forms to add defendants to

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a case. If plaintiff wishes to add defendants, he must make a motion to amend the complaint. If

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he chooses to do so, plaintiff must attach a copy of his proposed amended complaint to his motion

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so that the court can determine whether leave to amend should be granted. See E.D. Cal. R.

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137(c).
In any amended complaint plaintiff must demonstrate how the conditions complained of

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have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th

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Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is

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involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link

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or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423

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U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978).

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Furthermore, supervisory personnel are generally not liable under § 1983 for the actions

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of their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d

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266, 268 (9th Cir. 1982).

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th
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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

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and the involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s request for the appointment of counsel (ECF No. 29) is denied; and

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2. Plaintiff’s request for forms (ECF No. 30) is denied.

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Dated: March 16, 2017

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DLB:9
DLB1/prisoner-civil rights/chas0961.31

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