Hawthorne v. Ayers et al

Filing 14

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge William Alsup on 10/13/08. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/14/2008)

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1 2 3 4 5 6 7 8 9 10 CARLOS ANTHONY HAWTHORNE II, Plaintiff, v. R. AYERS, JR.; A. COTA; R. W. FOX; J. PICKETT; D. LEE; T. HOLT; S. ROBINSON; R. CRUZ; Defendant. No. C 08-1473 WHA (PR) DISMISSAL WITH LEAVE TO AMEND IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / Plaintiff, an inmate of San Quentin State Prison, has filed a pro se civil rights complaint under 42 U.S.C. 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION A. STANDARD OF REVIEW Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 1 2 3 4 5 6 7 8 9 10 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). B. LEGAL CLAIMS Plaintiff contends that defendants violated his rights by assigning him to exercise yard five other than the one he had been using for eight years, the reassignment being based on their incorrect belief that he is a member of the Crips gang. Because he refused to accept the assignment he was put on "Grade A walk alone" status. He contends putting him on the Grade A walk-alone yard violated his Eighth Amendment rights and constituted a violation of human rights because it had no place to sit; no running water, sink or toilet; and had dried urine stains on the walls and ground. He says he was forced to ask for a plastic bag in which to relieve himself. Plaintiff does not explain the basis for his claim regarding the attempted assignment to yard five, although he contends it was "illegal," and the facts alleged do not appear to state a claim for violation of the Constitution or federal law. The complaint therefore must be dismissed with leave to amend. Assuming that plaintiff's claim is that the attempted 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 assignment to exercise yard five violated his due process rights, in order to establish that he had a liberty interest in not being assigned to that yard he must plead sufficient facts to allege that conditions there were such as to impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." See Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff should also note that the conditions in the walk-alone yard do not amount to an Eighth Amendment violation, so if he chooses to amend he should include any facts he believes show such a violation. Plaintiff is a member of the class in a class action brought by prisoners on San Quentin's death row, the subject of which is conditions on death row. See Lancaster v. Cade, No. 791630 WHA. Because plaintiff is a member of the Lancaster class, his requests for injunctive relief cannot be considered in this case. See McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is a pending class action suit involving the same subject matter); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc) ("Individual members of the class and other prisoners may assert any equitable or declaratory claims they have, but they must do so by urging further actions through the class representative and attorney, including contempt proceedings, or by intervention in the class action."). The injunctive relief claims will be dismissed without leave to amend. C. PLAINTIFF'S MOTIONS Plaintiff has moved for appointment of counsel. There is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). Section 1915 of Title 28 of the United States Code confers on a district court only the power to "request" that counsel represent a litigant who is proceeding in forma pauperis. 28 U.S.C. 1915(e)(1). This does not give the courts the power to make "coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). In short, the Court has only the power to ask pro bono counsel to represent plaintiff, not the power to "appoint" counsel. It appears from the complaint that plaintiff is literate and capable of presenting his 3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 claims, and the issues are not complex. The motion will be denied. Plaintiff has also moved for an order requiring the prison authorities to provide him with legal supplies. Plaintiff has not yet stated a claim and no defendant has been served; without jurisdiction over a defendant at the prison, the Court could not enforce such an order. The motion will be denied. See In re Estate of Ferdinand Marcos, 94 F.3d 539, 545 (9th Cir. 1996) (to enforce injunction court must have personal jurisdiction; court should not issue an injunction it cannot enforce). CONCLUSION 1. Plaintiff's injunctive relief requests are DISMISSED without leave to amend. 2. The complaint is DISMISSED with leave to amend as to the damages claims, as indicated above, within thirty days from the date of this order. The amended complaint must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to amend within the designated time will result in the dismissal of these claims. 3. Plaintiff's motions (documents 7 and 8) are DENIED. 4. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing with the clerk a separate paper headed "Notice of Change of Address." Papers intended to be filed in this case should be addressed to the clerk and not to the undersigned. Petitioner also must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: October 13 , 2008. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE G:\PRO-SE\W HA\CR.08\HAW THORNE1473.DW LTA.wpd 4

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