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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL JOHN GADDY, Plaintiff, 8 v. 9 11 For the Northern District of California United States District Court 10 12 13 14 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. 15 / 16 17 Plaintiff, an inmate at Pelican Bay State Prison, has filed a pro se civil rights 18 complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma 19 pauperis. 20 21 22 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 23 seek redress from a governmental entity or officer or employee of a governmental entity. 24 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 25 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 26 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 27 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 28 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 1 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 2 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 3 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 4 grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 5 omitted). Although in order to state a claim a complaint “does not need detailed factual 6 allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief' 7 requires more than labels and conclusions, and a formulaic recitation of the elements of a 8 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 9 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 11 For the Northern District of California United States District Court 10 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 12 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 13 framework of a complaint, they must be supported by factual allegations. When there are 14 well-pleaded factual allegations, a court should assume their veracity and then determine 15 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 16 1937, 1950 (2009). 17 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 18 elements: (1) that a right secured by the Constitution or laws of the United States was 19 violated, and (2) that the alleged deprivation was committed by a person acting under the 20 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 21 B. 22 Legal Claims Plaintiff alleges that defendants Sherman, Wells, Guerra, Tran and Gutierrez were 23 upset that plaintiff had complained about their failure to “run showers” for five days, and in 24 consequence engaged in an unprovoked retaliatory attack on him in his cell, injuring him. 25 This claim is sufficient to proceed. 26 Plaintiff also claims that defendant Walker was “grossly negligent” in allowing the 27 above defendants, who he supervised, to engage in the attack. This is insufficient to state 28 a claim. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994) (neither negligence 2 1 nor gross negligence sufficient for Eighth Amendment claim). To state a claim he must 2 provide facts sufficient to plausibly allege that Walker knew of the attack and was 3 deliberately indifferent to it. See id. at 837(deliberate indifference standard). This claim will 4 be dismissed with leave to amend. 5 In his third claim, plaintiff contends that defendants Reamer, Guerra, Tran, and 6 Gutierrez retaliated against him on January 10, 2011, for filing a complaint about the earlier 7 assault. He asserts that they housed him in an undesirable cell and seized inmate 8 declarations he had gathered for use in actions about the previous assault, thus retaliating 9 against him for filing the complaint and interfering with his access to the courts This claim is sufficient to proceed. 11 For the Northern District of California United States District Court 10 C. Counsel 12 Plaintiff has moved for appointment of counsel. 13 There is no constitutional right to counsel in a civil case, Lassiter v. Dep't of Social 14 Services, 452 U.S. 18, 25 (1981), and although district courts may "request" that counsel 15 represent a litigant who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. 16 § 1915(e)(1), that does not give the courts the power to make "coercive appointments of 17 counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). 18 The Ninth Circuit has held that a district court may ask counsel to represent an 19 indigent litigant only in "exceptional circumstances," the determination of which requires an 20 evaluation of both (1) the likelihood of success on the merits and (2) the ability of the 21 plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. 22 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 23 24 25 26 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) 27 is DENIED. His motion for production of documents (document number 4) also is DENIED, 28 as no defendants have yet been served. 3 1 2 2. Plaintiff’s claims against defendant Captain Walker are DISMISSED with leave to 3 amend within thirty days from the date of this order. The amended complaint must include 4 the caption and civil case number used in this order and the words AMENDED 5 COMPLAINT on the first page. Because an amended complaint completely replaces the 6 original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik 7 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 8 original complaint by reference. Failure to amend within the designated time will result in 9 the dismissal of these claims. 3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 11 For the Northern District of California United States District Court 10 court informed of any change of address by filing a separate paper with the clerk headed 12 “Notice of Change of Address,” and must comply with the court's orders in a timely fashion. 13 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 14 Federal Rule of Civil Procedure 41(b). 15 16 IT IS SO ORDERED. Dated: April 10, 2012. PHYLLIS J. HAMILTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\PJH\CR.11\GADDY5568.DWLTA.wpd 4

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