Robinson v. Castellon et al

Filing 23

ORDER signed by Magistrate Judge Deborah Barnes on 2/8/2019 DISMISSING plaintiff's first amended complaint with leave to amend; GRANTING plaintiff 30 days to file a second amended complaint; and DENYING plaintiff's 21 motion for appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ROBINSON,

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No. 2:17-cv-2550 DB P

Plaintiff,
v.

ORDER

R. CASTELLON, et al.,

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Defendants.

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Plaintiff is a state inmate proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. Plaintiff claims defendants were deliberately indifferent to his safety in violation of the

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Eighth Amendment. By order dated December 26, 2018, the court screened the complaint and

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found plaintiff stated an Eighth Amendment failure to protect claim against defendants Castellon,

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Jacobs, and Walthall. (ECF No. 16.) The court also found that plaintiff failed to state a claim

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against any Doe defendants based on their failure to provide adequate medical treatment.

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Plaintiff was given the option to proceed on the complaint as screened or to file an amended

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complaint. Plaintiff opted to amend the complaint. (ECF No. 19.)

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Presently before the court is plaintiff’s first amended complaint (ECF No. 22) for

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screening and his motion to appoint counsel (ECF No. 21). For the reasons set forth below, the

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court will dismiss the first amended complaint with leave to amend and deny the motion to

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appoint counsel.
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SCREENING

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I.

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Legal Standards
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an 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 the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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that “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil 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. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Allegations in the First Amended Complaint
Plaintiff states that on December 18, 2016 he was sent to an outside hospital to be treated

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for head and body trauma, where he was diagnosed with a fractured nose. (ECF No. 22 at 2.)

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Follow-up treatment was ordered and information regarding such treatment was forwarded to

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California Department of Corrections and Rehabilitation (“CDCR”) medical staff. Plaintiff

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further states that he was called into a sergeant’s office at Deuel Vocational Institution and told

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that if he withdrew his administrative appeal he would receive medical treatment. (ECF No. 22 at

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3.) He states that he did not receive treatment after he withdrew the appeal. Plaintiff alleges he

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suffers from septal deformities and difficulty breathing as a result of CDCR’s failure to provide

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timely follow-up treatment. (ECF No. 22 at 7.)
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III.

Analysis

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The first amended complaint fails to state a claim because plaintiff has not clearly

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identified which individuals deprived him of adequate medical treatment. Plaintiff alleges CDCR

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medical staff or CDCR generally refused to follow outside doctors’ orders to provide follow-up

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treatment and have plaintiff be seen by a specialist. However, these allegations are insufficient to

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state a claim because he has not stated facts connecting the denial of treatment to any specific

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identifiable defendant.

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In order to state a cognizable claim, plaintiff must set forth specific factual allegations
demonstrating how each defendant violated his rights. See Leer v. Murphy, 844 F.2d 628, 634

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(9th Cir. 1988). Under § 1983, plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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This requires the presentation of factual allegations sufficient to state a plausible claim for relief.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

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Cir. 2009). The statute clearly 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 the plaintiff. See

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Monell, 436 U.S. 692.

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Here, plaintiff allegation that he was denied treatment for his injury is sufficient to show a

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violation of his Eighth Amendment rights. However, in order state a cognizable claim, plaintiff

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must connect the deprivation to a specific defendant or defendants. Plaintiff must clearly identify

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which defendants he feels are responsible for each violation of his constitutional rights and the

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factual basis. His complaint must put each defendant on notice of the claims against him or her.

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See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). Although pro se pleadings are

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liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), conclusory and vague allegations

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will not support a cause of action. Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266,

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268 (9th Cir. 1982). Even a liberal interpretation of a civil rights complaint may not support

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essential elements of the claim that were not initially pled. Id.

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Accordingly, plaintiff’s amended complaint will be dismissed with leave to amend

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because he has failed to identify any specific defendant who violated his right to adequate

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medical care.

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IV.

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Amending the Complaint
Plaintiff is advised that in an amended complaint he must clearly identify each defendant

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and the action that defendant took that violated his constitutional rights. The court is not required

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to review exhibits to determine what plaintiff’s charging allegations are as to each named

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defendant. The charging allegations must be set forth in the amended complaint so defendants

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have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every

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detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of

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each claim. See Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought

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in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

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contain a request for specific relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation

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of a constitutional right if he does an act, participates in another’s act or omits to perform an act

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he is legally required to do that causes the alleged deprivation).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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An amended complaint must be complete in itself without reference to any prior pleading.

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.

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Plaintiff’s amended complaint omitted the factual allegations against defendants Castellon,

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Jacobs, and Walthall contained in the original complaint. Any amended complaint should contain

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all of the allegations related to his claim in this action. If plaintiff wishes to pursue his claims

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against these defendants they must be set forth in the amended complaint.

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By signing an amended complaint, plaintiff certifies she has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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MOTION TO APPOINT COUNSEL

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Plaintiff has requested appointment of counsel. (ECF No. 21) Plaintiff argues the court

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should appoint counsel because he does not understand “all the legal stuff,” he is still in custody,

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and is a participant in the CDCR mental health treatment program.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff’s arguments in support of his motion detail circumstances common to most inmates and

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therefore do not warrant the appointment of counsel. Further, at this stage of the proceedings the

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court is unable to determine plaintiff’s likelihood of success on the merits. Accordingly, the court

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will deny without prejudice plaintiff’s motion to appoint counsel.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed with leave to amend.

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2. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with this order, the Federal Rules of Civil Procedure, and the

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Local Rules of Practice.
3. The amended complaint must bear the docket number assigned to this case and must
be labeled “Second Amended Complaint.”

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4. Failure to comply with this order will result in a recommendation that this action be

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dismissed.
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Plaintiff’s motion for the appointment of counsel (ECF No. 21) is denied.

Dated: February 8, 2019

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