Scally v. Ferrara et al

Filing 24

ORDER signed by Magistrate Judge Craig M. Kellison on 2/3/2017 DISMISSING plaintiff's amended complaint. Plaintiff shall file a second amended complaint within 30 days. Plaintiff's 21 motion for 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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STEPHEN EARL SCALLY,

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Plaintiff,
vs.

ORDER

THOMAS A. FERRARA, et al.,
Defendants.

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No. 2:15-cv-2528-CMK-P

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Plaintiff, a county jail inmate, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. Pending before the court is plaintiff’s first amended complaint (Doc. 19) and motion for

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appointment of counsel (Doc. 21).

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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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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s allegations are factually vague relating to numerous incidents that

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occurred between July 2, 2015, and November 25, 2016, involving sixty-five named defendants

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and 1 through XXXXXX doe defendants.

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II. DISCUSSION

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Plaintiff’s first amended complaint suffers from many of the same defects

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contained in his original complaint. In addition to those defects, the amended complaint includes

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allegations relating to over twenty incidents that occurred after the filing of the initial complaint.

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As discussed above, Rule 8 requires a complaint contain a short and plain

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statement of the claim. Plaintiff’s complaint refers to over three hundred sixty (360) pages of

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attached documents which purportedly support the factual allegations against the defendants.

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This pleading method does not, however, satisfy the requirement of Federal Rule of Civil

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Procedure 8(a) that claims must be stated simply, concisely, and directly. To the contrary,

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plaintiff’s complaint would require the court to comb through three hundred seventy-nine (379)

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pages of documents in order to even guess at plaintiff’s claims. The court is unwilling to do this

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in part due to limited judicial resources but also because it is for plaintiff – not the court – to

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formulate his claims.

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Plaintiff’s claims are not sufficiently plead for the court to properly evaluate

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whether plaintiff can state a claim or whether his claims are frivolous. To state a claim under 42

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U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the

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named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S.

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658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act,

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participates in another's affirmative acts, or omits to perform an act which he is legally required

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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

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

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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual

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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988).

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The claims the court was able to decipher from plaintiff’s original complaint were

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addressed in the court’s prior screening order. Plaintiff is referred to that order for guidance as to

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what is necessary to state a claim. However, if plaintiff is not able to file a second amended

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complaint that complies with the requirements of Rule 8 and which sufficiently sets forth specific

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factual allegations as to which of his Constitutional rights were violated and by whom, the court

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may dismiss this action in its entirety. Any amended complaint shall be limited to the claims

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raised in plaintiff’s original complaint; plaintiff shall not add additional unrelated claims or

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additional unrelated defendants. In addition, plaintiff shall not attempt to restate claims which

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were previously found not subject to cure.

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III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff also seeks the appointment of counsel. The United States Supreme Court

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has 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
circumstances. As best the court can determine, this case involves claims of violation of

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plaintiff’s First Amendment rights regarding inmate grievances, Eighth Amendment rights to be

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safe, and violation of Due Process rights at disciplinary proceedings. These claims are fairly

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straightforward and do not appear to be particularly complex, either legally or factually. While

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his current complaint is insufficient, it does not appear to be due to plaintiff’s inability to

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articulate his claim. At this early stage of the proceedings, especially in light of the above

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discussion, the undersigned cannot say that plaintiff is likely to prevail in this lawsuit. Plaintiff

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was advised that if he successfully files an amended complaint which states a claim, he may be

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able to renew his request for appointment of counsel. However, the amended complaint filed

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does not comply with Rule 8 and is insufficient as stated above. The undersigned does not find

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the required circumstances for appointment of counsel at this stage of the proceedings.

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IV. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is 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 is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended
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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s amended complaint is dismissed with leave to amend;

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2.

Plaintiff shall file a second amended complaint within 30 days of the date

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of service of this order;
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Plaintiff’s motion for appointment of counsel (Doc. 21) is denied.

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DATED: February 3, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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