(PC)Gipbsin v. Sanddu et al

Filing 12

ORDER signed by Magistrate Judge Dennis M. Cota on 10/4/2019 DISMISSING Plaintiff's first amended complaint (ECF No. 11 ) with leave to amend; Plaintiff shall file a second amended complaint within 30 days of the date of service of this order; and DENYING Plaintiff's motion for appointment of counsel (ECF No. 10 ). (Becknal, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE A. GIPBSIN, 12 Plaintiff, 13 v. 14 No. 2:19-CV-1276-KJM-DMC-P SANDDU, et al., 15 ORDER Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (ECF No. 11) 19 and Plaintiff’s motion for appointment of counsel (ECF No. 10). 20 21 I. PLAINTIFF’S COMPLAINT 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 24 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 25 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 26 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 27 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 28 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 1 1 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 2 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 3 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 4 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 5 with at least some degree of particularity overt acts by specific defendants which support the 6 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 7 impossible for the court to conduct the screening required by law when the allegations are vague 8 and conclusory. 9 As discussed above, Rule 8 requires a complaint contain a short and plain 10 statement of the claim. Plaintiff’s complaint refers to nearly 200 pages of attached documents 11 which purportedly support the factual allegations against the defendants. This pleading method 12 does not satisfy the requirement of Rule 8(a) that claims must be stated simply, concisely, and 13 directly. To the contrary, plaintiff’s complaint would require the court to comb through 204 14 pages of documents in order to determine whether plaintiff has stated any claims upon which 15 relief can be granted. It is for plaintiff – not the Court – to formulate his claims in a way that 16 satisfies the rules. The complaint will be dismissed with leave to amend. Plaintiff is cautioned 17 that failure to file an amended complaint within the time specified herein may result in dismissal 18 of the entire action. See Local Rule 110. 19 20 21 II. MOTION FOR APPOINTMENT OF COUNSEL The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 2 1 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 of counsel because: 4 5 6 7 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. Id. at 1017. In the present case, the court does not at this time find the required exceptional 8 circumstances. As discussed above, Plaintiff’s complaint fails to meet the pleading requirement 9 under Rule 8. For that reason, as currently pleaded, there is no likelihood of success on the 10 merits. Further, Plaintiff’s complaint seems to raise claims of alleged Eighth Amendment 11 violations related to medical treatment. These claims are similar to those raised by numerous pro 12 13 se plaintiffs. There is no indication that there is an exceptional component to Plaintiff’s specific claims such to justify the appointment of counsel. For these reasons, at this time, Plaintiff’s 14 motion for appointment of counsel cannot be granted. 15 16 III. CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s first amended complaint (ECF No. 11) is DISMISSED with 19 leave to amend; 20 2. Plaintiff shall file a second amended complaint within 30 days of the date 21 of service of this order; and 22 3. Plaintiff’s motion for appointment of counsel (ECF No. 10) is DENIED. 23 24 25 Dated: October 4, 2019 26 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 27 28 3

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