LaFlamme v. Kern et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 12/14/2017 DISMISSING plaintiff's amended complaint with leave to file a second amended complaint within 30 days; DENYING plaintiff's 9 motion for appointment of counsel ; and VACATING plaintiff's 10 motion for injunctive relief. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DON LaFLAMME,

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Plaintiff,

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No. 2: 17-cv-1550 MCE KJN P

v.

ORDER

KERN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On August 9, 2017, the undersigned dismissed plaintiff’s complaint with

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leave to amend. (ECF No. 6.) Pending before the court is plaintiff’s amended complaint. (ECF

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No. 8.)

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Named as defendants are California Department of Corrections (“CDCR”) Secretary

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Kern, Mule Creek State Prison (“MCSP”) Warden Lizarraga, Correctional Officer Parker and

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Correctional Officer Burkard.

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Plaintiff’s amended complaint is difficult to understand. Plaintiff appears to challenge the

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validity of his criminal sentence and, possibly, his failure to be released on parole. In another

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claim, plaintiff appears to challenge the validity of a prison disciplinary conviction and, possibly,

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a related criminal conviction. Finally, plaintiff also appears to raise a claim alleging that

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homosexual inmates at MCSP, where he is housed, receive better treatment than non-homosexual
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inmates. As relief, plaintiff seeks money damages.
Because the undersigned does not understand plaintiff’s claims challenging his criminal

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sentence and/or failure to be released on parole, these claims are dismissed with leave to amend.

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If plaintiff files a second amended complaint, he must clarify the grounds of these claims.

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Moreover, it does not appear that plaintiff has linked any defendant to these claims. The Civil

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Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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

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

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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

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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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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal
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participation is insufficient).
If plaintiff files a second amended complaint raising a claim challenging his criminal
sentence and/or failure to be released on parole, plaintiff must link a defendant to these claims.
In addition, under Heck v. Humphrey, a civil rights claim is disallowed if rendering a

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judgment for a plaintiff would necessarily imply that a previous conviction or sentence is invalid.

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512 U.S. 477, 489 (1994). Plaintiff should not raise a claim challenging his sentence and/or

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failure to be released on parole if a finding in his favor would necessarily imply the invalidity of

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his sentence or confinement.

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In his second claim, plaintiff appears to challenge the validity of a prison disciplinary

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conviction and related criminal conviction. Exhibits attached to the amended complaint

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demonstrate that plaintiff was assessed 359 days of credit after the prison disciplinary conviction

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for attempted murder. (ECF No. 8 at 41.) In the amended complaint, plaintiff alleges that some

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of the defendants testified against him at the disciplinary hearing.

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The undersigned does not understand how plaintiff is challenging his disciplinary

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conviction and, possibly, related criminal conviction. Accordingly, these claims are dismissed

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with leave to amend. If plaintiff files a second amended complaint, he shall clarify the grounds

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on which he challenges these proceedings.

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Plaintiff is informed that Heck v. Humphrey has also been invoked in prison disciplinary

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hearings involving good-time credits. Edwards v. Balisok, 520 U.S. 641, 648 (1997). However,

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when a civil rights claim does not necessarily implicate the underlying disciplinary action, it may

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proceed. See Muhammad v. Close, 540 U.S. 749, 754-55 (2004). Plaintiff is informed that

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claims challenging the validity of the prison disciplinary proceedings, and related criminal

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conviction, may be barred by Heck.

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Finally, plaintiff appears to claim that homosexual inmates at MCSP receive better

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treatment than non-homosexual inmates, like plaintiff. Plaintiff’s claim alleging discrimination is

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vague and conclusory. For this reason, the undersigned cannot determine whether plaintiff has

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stated a potentially colorable claim for relief. If plaintiff files a second amended complaint, he

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shall discuss in more detail the ways in which he alleges he is being discriminated against.
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Plaintiff has also filed a motion for appointment of counsel. (ECF No. 9.) District courts

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lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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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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On September 15, 2017, plaintiff filed a motion for injunctive relief. (ECF No. 10.) This

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motion seeks injunctive relief based on the claims raised in the amended complaint. Because the

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amended complaint is dismissed with leave to amend, plaintiff’s motion for injunctive relief is

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vacated. Plaintiff may re-file his motion for injunctive relief, based on the merits of this action,

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after he files a complaint containing potentially colorable claims for relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed with thirty days to file a second amended

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complaint; failure to file a second amended complaint within that time will result in a

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recommendation of dismissal of this action;
2. Plaintiff’s motion for appointment of counsel (ECF No. 9) is denied;

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3. Plaintiff’s motion for injunctive relief (ECF No. 10) is vacated.
Dated: December 14, 2017

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