McKinley v. Miller et al

Filing 25

ORDER (1) Denying Motion For Appointment of Counsel (Dkt # 24 ); And (2) Directing U.S. Marshal To Effect Service Upon Defendants. Signed by Judge William Q. Hayes on 8/29/2017. (Per Order, IFP package prepared as to First Amended Complaint.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TERRY McKINLEY,
CDCR #AM-6145,

Case No.: 3:15-cv-0228-WQH-RBB
ORDER:

Plaintiff,

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vs.

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1) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[Doc. No. 24]; and

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AMY MILLER; J.G. JANDA; R.
PREMDAS; B. HUGIE

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2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE UPON
DEFENDANTS PURSUANT TO 28
U.S.C. § 1915(d) AND Fed. R. Civ. P.
4(c)(3)

Defendants.

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Terry McKinley (“Plaintiff”) currently incarcerated at the California Men’s Colony

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located in San Luis Obispo, California, is proceeding pro se in this case with a civil rights

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action filed pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion for

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Appointment of Counsel. (ECF No. 24.) Plaintiff has not prepaid the $400 civil filing fee

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required by 28 U.S.C. § 1914(a); instead, he was granted leave to proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 3). The operative pleading

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before this Court is Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 22.)

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3:15-cv-0228-WQH-RBB

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I.

Motion to Appoint Counsel

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Plaintiff seeks counsel in this matter on the grounds that he is indigent and the “issues

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involved are complex and of a serious matter.” (Pl.’s Mot., ECF No. 24, at 1.) In addition,

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Plaintiff also contends that he suffers from memory loss and has “no legal comprehension.”

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(Id.) However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.

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of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009). While 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request”

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that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America,

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390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under

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“exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991). A finding of exceptional circumstances requires the Court “to consider whether

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there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to

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articulate his claims in light of the complexity of the legal issues involved.’” Harrington v.

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Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970).

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The Court denies Plaintiff’s request without prejudice because nothing in his FAC,

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or in his Motion to Appoint Counsel, suggests he is incapable of articulating the factual

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basis for his claims, which appear “relatively straightforward.” Id. In fact, the Court finds,

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based on its screening of Plaintiff’s FAC under the standards of review discussed below,

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that Plaintiff has pleaded sufficient factual content to state plausible Eighth Amendment

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claims. However, at this initial stage of the pleadings, Plaintiff has not yet shown a

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likelihood of success on the merits. Id. Therefore, the Court finds no “exceptional

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circumstances” and DENIES the Motion to Appoint Counsel (ECF No. 24) on that basis.

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See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel

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where prisoner could articulate his claims in light of the complexity of the issues involved,

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but did not show likelihood of succeed on the merits).

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-answer

Standard of Review

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3:15-cv-0228-WQH-RBB

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the

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Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)). “The standard for determining whether a plaintiff has

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failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the

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same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680

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F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates

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the familiar standard applied in the context of failure to state a claim under Federal Rule of

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Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm,

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680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

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[is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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B.

42 U.S.C. § 1983

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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 violation 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); Naffe v. Frye, 789 F.3d 1030,

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1035-36 (9th Cir. 2015).
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3:15-cv-0228-WQH-RBB

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Here, the Court finds Plaintiff’s FAC contains claims sufficient to survive the “low

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threshold” for proceeding past the sua sponte screening required by 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b). See Wilhelm 680 F.3d at 1123; Hudson v. McMillian, 503

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U.S. 1, 5, (1992) (unnecessary and wanton infliction of pain violates the Cruel and Unusual

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Punishments Clause of the Eighth Amendment)

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Accordingly, the Court will direct the U.S. Marshal to effect service upon

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Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall

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issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3)

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(“[T]he court may order that service be made by a United States marshal or deputy marshal

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. . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

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III.

Conclusion and Order

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For the reasons discussed, the Court:

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1)

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DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 24) without

prejudice.
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DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 22)

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and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant.

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In addition, the Clerk will provide Plaintiff with a certified copy of the March 11, 2015

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Order, a certified copy of his FAC and the summons so that he may serve these Defendants.

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Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285 as completely

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and accurately as possible pursuant to S.D. CAL. CIVLR 4.1c, and return it to the United

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States Marshal according to the instructions the Clerk provides in the letter accompanying

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his IFP package;

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ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

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Defendants as directed by Plaintiff on the USM Form 285 provided to him. All costs of

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that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV.

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P. 4(c)(3);

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ORDERS Defendants, once they have been served, to reply to Plaintiff’s FAC

within the time provided by the applicable provisions of Federal Rule of Civil Procedure
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12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to

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“waive the right to reply to any action brought by a prisoner confined in any jail, prison, or

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other correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a

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preliminary determination based on the face on the

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pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” the

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defendant is required to respond); and

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been was served on

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Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any

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document received by the Court which has not been properly filed with the Clerk or which

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fails to include a Certificate of Service upon the Defendants may be disregarded.

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IT IS SO ORDERED.
Dated: August 29, 2017

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