Legardy v. Atchley et al

Filing 17

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Robert M. Illman; denying 16 Motion to Appoint Counsel ; dismissing 16 Motion for Extension of Time to File. (rmilc2S, COURT STAFF) (Filed on 11/16/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD LEGARDY,
Plaintiff,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
M.B. ATCHLEY, et al.,

Re: Dkt. No. 16

Defendants.

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United States District Court
Northern District of California

Case No. 20-cv-05716-RMI

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The

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original complaint was dismissed with leave to amend and Plaintiff has filed an amended

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complaint.
DISCUSSION

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Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1)-(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not

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necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the

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grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

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Although a complaint “does not need detailed factual allegations . . . a plaintiff's obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must

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be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has

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recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can

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provide the framework of a complaint, they must be supported by factual allegations. When there

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are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679

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United States District Court
Northern District of California

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(2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged deprivation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988).

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Legal Claims

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Plaintiff alleges that defendants failed to protect him from sexual assaults by his cellmate.

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The Eighth Amendment requires that prison officials take reasonable measures to guarantee the

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safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials

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have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; Cortez v.

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Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.

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2005). The failure of prison officials to protect inmates from attacks by other inmates or from

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dangerous conditions at the prison violates the Eighth Amendment when two requirements are

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met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is,

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subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison

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official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health

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or safety by failing to take reasonable steps to abate it. Id. at 837.

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Allegations in a pro se complaint sufficient to raise an inference that the named prison

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officials knew that Plaintiff faced a substantial risk of serious harm, and disregarded that risk by

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failing to take reasonable measures to abate it, state a failure-to-protect claim. See Hearns, 413

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F.3d at 1041-42 (citing Farmer, 511 U.S. at 847).
Plaintiff states that he reported to defendants Gonzalez, Redon and Fernandez that his

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cellmate was attempting to sexually assault him. Plaintiff contends that defendants failed to act,

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and his cellmate sexually assaulted him. Liberally construed this presents an Eighth Amendment

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claim against these defendants.
Plaintiff also seeks to bring an action pursuant to the Prison Rape Elimination Act of 2003,

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42 U.S.C. § 15601 (“PREA”). However, the PREA does not create a private right of action, even

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United States District Court
Northern District of California

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for allegations of prison rape. See Krieg v. Steele, 599 Fed. Appx. 231 (5th Cir. 2015) (collecting

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cases); Porter v. Jennings, 2012 WL 1434986, at *1 (E.D. Cal. 2012) (noting same). The amended

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complaint is dismissed with leave to amend. In a second amended complaint, Plaintiff should only

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bring claims pursuant to the Eighth Amendment and remove his PREA claims.
Plaintiff has also filed a motion to appoint counsel. There is no constitutional right to

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counsel in a civil case, Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981), and although

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district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis,

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as Plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make

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“coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310

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(1989).

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The Ninth Circuit has held that a district court may ask counsel to represent an indigent

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litigant only in “exceptional circumstances,” the determination of which requires an evaluation of

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both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately, and the issues are not

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complex.

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CONCLUSION

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1. The motion to appoint counsel (Docket No. 16) is DENIED. The amended complaint is

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DISMISSED with leave to amend in accordance with the standards set forth above. The second

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amended complaint must be filed within twenty-eight (28) days of the date this order is filed and

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must include the caption and civil case number used in this order and the words SECOND

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AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces

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the original complaint, Plaintiff must include in it all the claims that he wishes to present. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time may result in the

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dismissal of this case.

United States District Court
Northern District of California

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2. It is the Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do

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so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 16, 2020

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ROBERT M. ILLMAN
United States Magistrate Judge

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