Owens v. Clark et al

Filing 13

ORDER signed by Magistrate Judge Kendall J. Newman on 8/3/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis (ECF No. 9 ) is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Pla intiff's motion for the appointment of counsel (ECF No. 3) is denied without prejudice. Plaintiffs motion for leave to file an amended complaint (ECF No. 11 ) is granted. Within may file an amended complaint within thirty days from the date of this order. Clerk of the Court is directed to send plaintiff the forms necessary to file a prisoner civil rights complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK OWENS,

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Plaintiff,

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No. 2:15-cv-0982 TLN KJN P

v.

ORDER

JACKIE CLARK, et al.,

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Defendants.

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Plaintiff is a state prisoner, currently incarcerated at California Medical Facility in

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Stockton, California. Plaintiff proceeds without counsel in this civil right action filed pursuant to

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42 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). Now pending before the court are plaintiff’s request to proceed in forma

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pauperis, motion for leave to file an amended complaint, and motion for appointment of counsel,

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each of which is addressed in turn below.

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I. Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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(ECF No. 9.)
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

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Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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II. Motion for Leave to File an Amended Complaint
Plaintiff has filed a motion for leave to file an amended complaint. (ECF No. 11.) In his

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motion, rather than file a proposed first amended complaint, plaintiff instead sets forth fourteen

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pages of additional allegations, citations, and legal arguments (id. at 2-15), and twenty-eight

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pages of exhibits (id. at 18-45). This filing is apparently intended to supplement plaintiff’s initial

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complaint, which consists of thirty-six pages of allegations, citations, and legal arguments (ECF

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No. 1 at 1-36) and eighty-four pages of exhibits (id. at 45-128).

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Plaintiff is advised as follows. First, as the court has as yet not ordered service of the

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initial complaint, plaintiff will be granted leave to file an amended complaint pursuant to Federal

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Rule of Civil Procedure 15(a).

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Second, plaintiff is informed that the court cannot refer to a prior pleading (such as

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plaintiff’s initial complaint) in order to make plaintiff’s amended complaint complete. Local

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Rule 220 requires that an amended complaint be complete in itself without reference to any prior

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pleading. This requirement exists because, as a general rule, an amended complaint supersedes

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the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an

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amended complaint, the original pleading no longer serves any function in the case. Therefore, in

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an amended complaint, each claim and the involvement of each defendant must be sufficiently

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alleged. Accordingly, the allegations, citations, legal arguments, and exhibits filed in conjunction

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with plaintiff’s motion for leave to file an amended complaint will be disregarded in favor of the
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amended complaint.
Third, plaintiff is advised that Rule 8(a)(2) of the Federal Rules of Civil Procedure

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“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to

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relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957)). Citation to legal authority is unnecessary and superfluous.

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Although the Federal Rules adopt a flexible pleading policy, a complaint need only give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity

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overt acts which defendants engaged in that support plaintiff’s claim. Id. Plaintiff must plead

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factual allegations which demonstrate specifically how the conditions about which he complains

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resulted in a deprivation of plaintiff’s constitutional rights and how each named defendant is

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involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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Finally, plaintiff is advised that “[j]udges in the Eastern District of California carry the

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heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources

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to individual cases and matters.” Cortez v. City of Porterville, 5 F. Supp. 3d 1160, 1162 (E.D.

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Cal. 2014). Plaintiff should file a complaint that contains the allegations necessary to properly set

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forth his claims; filing an excessively-long complaint will delay the court’s handling of his case.

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III. Motion for Appointment of Counsel

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Plaintiff moves for appointment of counsel. (ECF No. 9.)

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District courts lack authority to require counsel to represent indigent prisoners in section

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

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28
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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). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id.

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Plaintiff asserts that he requires appointment of counsel because he is indigent, has limited

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legal knowledge and law library access, and suffers from disability-related pain due to an inability

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to sit, read, and write for long periods of time. While the court sympathizes with these

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challenges, they are insufficient to merit the appointment of counsel at this time. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Moreover, until plaintiff files his amended complaint, the court will not be able to determine

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plaintiff’s likelihood of success on the merits or his ability to articulate his claims in light of the

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complexity of the legal issues involved.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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IV. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 9) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s motion for the appointment of counsel (ECF No. 3) is denied without
prejudice.
4. Plaintiff’s motion for leave to file an amended complaint (ECF No. 11) is granted.

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Within thirty days from the date of this order, plaintiff shall complete the attached Notice of

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Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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5. The Clerk of the Court is directed to send plaintiff the forms necessary to file a

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prisoner civil rights complaint.

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Dated: August 3, 2015

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/owen0982.various

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK OWENS,

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No. 2:15-cv-0982 TLN KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

JACKIE CLARK, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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First Amended Complaint

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DATED:
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Plaintiff

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