Hollins v. United States of America

Filing 15

ORDER OF DISMISSAL WITH LEAVE TO AMEND AND DENYING 9 MOTION to Appoint Counsel filed by Michael Hollins. Signed by Judge Phyllis J. Hamilton on 1/14/13. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 1/14/2014)

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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 13-5035 PJH (PR)

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

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proceed in forma 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 twelve other cases in this court in the last two months, 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.

Legal Claims

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Plaintiff states that he is Muslim and has been denied the appropriate meal plan.

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Inmates "have the right to be provided with food sufficient to sustain them in good

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health that satisfies the dietary laws of their religion." McElyea v. Babbitt, 833 F.2d 196,

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198 (9th Cir. 1987). Allegations that prison officials refuse to provide a healthy diet

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conforming to sincere religious beliefs states a cognizable claim under § 1983 of denial of

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the right to exercise religious practices and beliefs. See Ward v. Walsh, 1 F.3d 873, 877

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(9th Cir. 1993) (Jewish inmate claiming denial of kosher diet), cert. denied, 510 U.S. 1192

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(1994); McElyea, 833 F.2d at 198 (same); Moorish Science Temple, Inc. v. Smith, 693 F.2d

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987, 990 (2d Cir. 1982) (Muslim inmate claiming denial of proper religious diet).

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It appears that plaintiff was provided the proper Halal/Kosher meal plan but was then
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changed to the vegetarian diet. Plaintiff states that he was removed from the meal plan

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after filing grievances regarding his food being prepared by other inmates. However,

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plaintiff has failed to identify any specific defendants in the complaint. The complaint will be

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dismissed with leave to amend to identify the defendants and how their actions violated his

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constitutional rights. Plaintiff should also describe how his current meal plan violates his

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religious beliefs.

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

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For the Northern District of California

United States District Court

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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
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

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18, 2013, and must include the caption and civil case number used in this order and the

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words AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may

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not 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 14, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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