Gaddy v. Solis et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton denying 3 Motion to Appoint Counsel ; denying 4 Motion to Compel (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 4/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICHAEL JOHN GADDY,
Plaintiff,

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v.

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For the Northern District of California

United States District Court

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No. C 11-5568 PJH (PR)
ORDER DISMISSING
COMPLAINT WITH LEAVE
TO AMEND

Warden A. SOLIS; Captain N.
WALKER; Lieutenant E. B.
SHERMAN; Sergeant A. WELLS;
Correctional Officers R. GUERRA,
T. TRAN, J. GUTIERREZ, T.
WHITLEY, S. SHEFFER, E.
TREJO, T. RINCON, H. GASCA,
T. REAMER, M. BOLES and S.
ASENJO,
Defendants.

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Plaintiff, an inmate at Pelican Bay State Prison, has filed a pro se civil rights

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complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma

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pauperis.

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DISCUSSION
A.

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

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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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

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omitted). Although in order to state a claim a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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For the Northern District of California

United States District Court

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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

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

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well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct.

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1937, 1950 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that defendants Sherman, Wells, Guerra, Tran and Gutierrez were

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upset that plaintiff had complained about their failure to “run showers” for five days, and in

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consequence engaged in an unprovoked retaliatory attack on him in his cell, injuring him.

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This claim is sufficient to proceed.

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Plaintiff also claims that defendant Walker was “grossly negligent” in allowing the

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above defendants, who he supervised, to engage in the attack. This is insufficient to state

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a claim. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994) (neither negligence
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nor gross negligence sufficient for Eighth Amendment claim). To state a claim he must

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provide facts sufficient to plausibly allege that Walker knew of the attack and was

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deliberately indifferent to it. See id. at 837(deliberate indifference standard). This claim will

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be dismissed with leave to amend.

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In his third claim, plaintiff contends that defendants Reamer, Guerra, Tran, and

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Gutierrez retaliated against him on January 10, 2011, for filing a complaint about the earlier

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assault. He asserts that they housed him in an undesirable cell and seized inmate

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declarations he had gathered for use in actions about the previous assault, thus retaliating

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against him for filing the complaint and interfering with his access to the courts This claim
is sufficient to proceed.

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For the Northern District of California

United States District Court

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C.

Counsel

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Plaintiff has moved for appointment of counsel.

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There is no constitutional right to counsel in a civil case, Lassiter v. Dep't of Social

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Services, 452 U.S. 18, 25 (1981), and although district courts may "request" that counsel

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represent a litigant who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C.

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§ 1915(e)(1), that does not give the courts the power to make "coercive appointments of

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counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).

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

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indigent litigant only in "exceptional circumstances," the determination of which requires an

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evaluation of both (1) the likelihood of success on the merits and (2) the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Plaintiff appears able to present his claims adequately, and the issues are not
complex. The motion for appointment of counsel will be denied.
CONCLUSION
1. Plaintiff’s motion for appointment of counsel (document number 3 on the docket)

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is DENIED. His motion for production of documents (document number 4) also is DENIED,

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as no defendants have yet been served.
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2. Plaintiff’s claims against defendant Captain Walker are DISMISSED with leave to

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amend within thirty days from the date of this order. The amended complaint must include

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the caption and civil case number used in this order and the words AMENDED

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

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

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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 will result in

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the dismissal of these claims.
3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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For the Northern District of California

United States District Court

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

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“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: April 10, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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