Hollins v. United States of America

Filing 14

FILED IN ERROR. DISREGARD.ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton and denying 9 Motion to Appoint Counsel (Attachments: # 1 Certificate/Proof of Service) (nahS, COURT STAFF) (Filed on 1/14/2014) Modified on 1/14/2014 (vlkS, COURT STAFF).

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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 HOLLINS,
Plaintiff,

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vs.

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

GREG MUNKS, et. al.,
Defendants.

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For the Northern District of California

United States District Court

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No. C 13-5083 PJH (PR)

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Plaintiff, a detainee at Maguire Correctional Facility has filed a pro se civil rights
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complaint under 42 U.S.C. § 1983.1 He has been granted leave to proceed in forma

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pauperis.
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DISCUSSION
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A.

Standard of Review

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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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Plaintiff has filed eight other cases in this court in the last month, several with
overlapping claims.

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)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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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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For the Northern District of California

grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

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United States District Court

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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, 556 U.S. 662,

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679 (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 jail staff used excessive force against him and medical staff did

not properly treat his injuries.
When a pretrial detainee challenges conditions of his confinement, the proper inquiry

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is whether the conditions amount to punishment in violation of the Due Process Clause of

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the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). The Due

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Process Clause protects a post-arraignment pretrial detainee from the use of excessive

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force that amounts to punishment. See Graham v. Conner, 490 U.S. 386, 395 n. 10 (1989)

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(citing Bell v. Wolfish, 441 U.S. 520, 535–39 (1979)); see also Gibson v. County of

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Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002). The Ninth Circuit has stated the

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factors a court should consider in resolving a due process claim alleging excessive force.
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White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990). These factors are (1) the need for the

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application of force, (2) the relationship between the need and the amount of force that was

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used, (3) the extent of the injury inflicted, and (4) whether force was applied in a good faith

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effort to maintain and restore discipline. Id.

proscription against cruel and unusual punishment.2 Estelle v. Gamble, 429 U.S. 97, 104

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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A determination of "deliberate indifference" involves an examination of two elements: the

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seriousness of the prisoner's medical need and the nature of the defendant's response to

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For the Northern District of California

Deliberate indifference to serious medical needs violates the Eighth Amendment's

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United States District Court

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that need. Id. at 1059.

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A "serious" medical need exists if the failure to treat a prisoner's condition could

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result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The

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existence of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual's daily activities; or the existence of chronic and substantial pain are examples of

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indications that a prisoner has a "serious" need for medical treatment. Id. at 1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps

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to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only

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“be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists,” but he “must also draw the inference.” Id. If a prison official should have

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Even though pretrial detainees' claims arise under the Due Process Clause, the
Eighth Amendment serves as a benchmark for evaluating those claims. See Carnell v. Grimm,
74 F.3d 977, 979 (9th Cir. 1996) (8th Amendment guarantees provide minimum standard of
care for pretrial detainees). The Ninth Circuit has determined that the appropriate standard
for evaluating constitutional claims brought by pretrial detainees is the same one used to
evaluate convicted prisoners' claims under the Eighth Amendment. "The requirement of
conduct that amounts to 'deliberate indifference' provides an appropriate balance of the pretrial
detainees' right to not be punished with the deference given to prison officials to manage the
prisons." Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc)
(citation omitted).
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been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175,

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1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and prison

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medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Plaintiff states that two named jail guards came to his cell to discuss a prior incident.

people entered his cell and began beating him and someone kneed him in the groin. One

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of the named defendants told plaintiff to stop resisting. Plaintiff was then removed and

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strapped to a chair for ten hours. Plaintiff then describes injuries from the assault and

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For the Northern District of California

Plaintiff then states that the jail emergency response team composed of ten to twelve

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United States District Court

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states that he did not receive adequate medical attention.

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While plaintiff has set forth sufficient facts for an excessive force claim he has not

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identified any specific defendants who assaulted him and it is not clear from the complaint

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the actions of the two named guards during the alleged assault. Other than describing his

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injuries plaintiff fails to identify any individual who medically treated him and how any

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treatment violated the constitution. The complaint will be dismissed with leave to amend for

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plaintiff to provide more information. Stating the emergency response team assaulted him

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or medical staff failed to treat him is insufficient. Plaintiff much identify specific individuals

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and describe their actions.

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Plaintiff has also requested the appointment of counsel. There is no constitutional

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

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and although district courts may "request" that counsel represent a litigant who is

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proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not

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give the courts the power to make "coercive appointments of counsel." Mallard v. United

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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). Plaintiff appears able to present his

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claims adequately, and the issues are not complex. Therefore, the motion to appoint

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counsel will be denied.

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CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than February 3,

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2014, and must include the caption and civil case number used in this order and the words

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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

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For the Northern District of California

United States District Court

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not

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incorporate material from the original complaint by reference.

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2. The motion to appoint counsel (Docket No. 9) is DENIED.

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3. 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

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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: January 2, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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