Johnson v. Doe et al

Filing 14

ORDER: 1) Granting 8 Motion to Proceed in Forma Pauperis; 2) Denying 10 Motion for Appointment of Counsel; and 3) Dismissing Complaint Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1). The Secretary CDCR, or his designee, is order ed to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward p ayments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Complaint is dismissed sua sponte for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. &# 167; 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff is granted 45 days from the date of this order to file an Amended Complaint which cures the deficiencies of the pleading. Signed by Judge Larry Alan Burns on 9/11/2017. (Copy of Order mailed to Secretary, CDCR)(Blank copy of 1983 Complaint form mailed to Plaintiff). (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,
CDCR #AZ-2648,

Case No.: 3:17-cv-00889-LAB-JLB
ORDER:

Plaintiff,

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vs.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 8]

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JOHN DOE, et al.,
2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 10]; AND

Defendants.

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3) DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)(1)

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Sedric Eugene Johnson (“Plaintiff”), incarcerated at Kern Valley State Prison

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located in Delano, California, is proceeding pro se in this case with a civil rights

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Complaint filed pursuant to 22 U.S.C. § 1983 on May 1, 2017 (ECF No. 1).

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3:17-cv-00889-LAB-JLB

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Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 8). He has also filed a Motion to Appoint Counsel (ECF No.

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10).

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I.

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Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified

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copy of the trust fund account statement (or institutional equivalent) for ... the 6-month

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly

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deposits in the account for the past six months, or (b) the average monthly balance in the

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account for the past six months, whichever is greater, unless the prisoner has no assets. 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

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prisoner then collects subsequent payments, assessed at 20% of the preceding month's

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income, in any month in which his account exceeds $10, and forwards those payments to

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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

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at 629.

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In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his

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CDCR Inmate Statement Report, together with a prison certificate attesting as to his trust

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account activity. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at

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1119. These statements show that Plaintiff has had no money in his trust account for the

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6-months preceding the filing of this action, and that he had a zero balance at the time of

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filing. See ECF No. 4 at 4-7. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

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criminal judgment for the reason that the prisoner has no assets and no means by which to

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pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

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(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

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prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available

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to him when payment is ordered.”).

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Therefore, the Court grants Plaintiff’s Motion to Proceed IFP (ECF No. 8),

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (CDCR) to collect the entire $350 balance

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of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the

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Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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Motion for Appointment of Counsel
Plaintiff also requests that the Court appoint him counsel due to his indigence and

the “complexity” of the issues involved in this case. (ECF No. 10 at 1.)
All documents filed pro se are liberally construed, and “a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal pleadings

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drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.

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Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no

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constitutional right to counsel in a civil case; and Plaintiff’s Complaint does not demand

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that the Court exercise its limited discretion to request than an attorney represent him pro

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bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of
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3:17-cv-00889-LAB-JLB

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Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d

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1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a

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discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991);

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist

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where there is cumulative showing of both a likelihood of success on the merits and a

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demonstrated inability of the pro se litigant to articulate his claims in light of their legal

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complexity. Id.

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As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be

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formally trained in law, he nevertheless is fully capable of legibly articulating the facts

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and circumstances relevant to his claims, which are typical and not legally “complex.”

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Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet

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to show he is likely to succeed on the merits of the claims.

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Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel

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(ECF No. 10).

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III.

Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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

Standard of Review

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

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statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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

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

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 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

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

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

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff claims that he was in his cell at Centinela State Prison (“CEN”) on August

Eighth Amendment claims

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2, 2016 when three unnamed individuals entered his cell and “attempted to assault” him.

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(ECF No. 1 at 3.) Plaintiff alleges that he “did his best to successfully defend” himself

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and after a “lapse in time” these individuals “proceed to back away into the open day

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room.” (Id.) However, Plaintiff was in a “mode of flight or fight” and “continued to

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approach these individuals.” (Id.) The “Tower Control Officer (John Doe)” is alleged to

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have “failed to assist or call for back up.” (Id.) Correctional Officers Lopez and Garcia

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“responded by approaching the situation with open-canisters at ready, yet never sprayed”

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anyone and they “sounded the code alarm.” (Id.) Plaintiff claims he was asked by Lopez

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and Garcia whether he required medical treatment but he refused. (Id. at 4.)
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3:17-cv-00889-LAB-JLB

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832–

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33 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth

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Amendment failure to protect claim, however, Plaintiff must allege facts sufficient to

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plausibly show that (1) he faced conditions posing a “substantial risk of serious harm” to

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his health or safety, and (2) the individual prison official he seeks to hold liable was

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“deliberately indifferent” to those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611

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F.3d 1144, 1150 (9th Cir. 2010). To demonstrate deliberate indifference, Plaintiff must

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allege facts sufficiently to plausibly show that the defendant both knew of and

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disregarded a substantial risk of serious harm to his health and safety. Farmer, 511 U.S.

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at 837. Thus, Plaintiff must allege “the official [was] both be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exist[ed], and [that]

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he . . . also dr[e]w that inference.” Id.

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Plaintiff’s Complaint contains no facts to plausibly suggest that any of the named

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Defendants knew Plaintiff faced a “substantial risk of serious harm” by the unidentified

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other inmates. In fact, Plaintiff acknowledges that Defendants were ready to use pepper

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spray and “sounded the alarm code.” (ECF No. 1 at 3.) He alleges no additional facts

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from which the Court might reasonably infer that Defendants were aware or became

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aware that Plaintiff faced any risk, let alone a substantial one from any other inmate.

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Iqbal, 556 U.S. at 678; see also Gaut v. Sunn, 810 F.2d 923. 925 (9th Cir. 1987) (“mere

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threat” of possible harm does not violate the Eighth Amendment); Berg v. Kincheloe, 749

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F.2d 457, 459 (9th Cir. 1986) (deliberate indifference requires showing of “more than a

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mere suspicion that an attack will occur.”); Hernandez v. Schriro, No. CV 05-2853-PHX-

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DGC, 2011 WL 2910710, at *6 (D. Ariz. July 20, 2011) (“While theoretical risk is

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always possible, Farmer requires more—‘conditions posing a substantial risk of serious

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harm.’”).

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“Much like recklessness in criminal law, deliberate indifference . . . may be shown
by circumstantial evidence when the facts are sufficient to demonstrate that a defendant
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3:17-cv-00889-LAB-JLB

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actually knew of a risk of harm.” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.

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2003. Indeed, deliberate indifference may be established if Plaintiff had allege facts

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sufficient to “infer[] from circumstantial evidence” that “the risk was obvious,” Farmer,

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511 U.S. at 842; but he has alleged no such facts here. See e.g., Cortez v. Skol, 776 F.3d

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1046, 1050 (9th Cir. 2015). Thus, even if Defendants “should have been aware of the

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risk, but [were] not,” the standard of deliberate indifference is not satisfied “no matter

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how severe the risk.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002);

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Dixon v. Harrington, No. 1:11-CV-01323-GBC PC, 2013 WL 28639, at *4 (E.D. Cal.

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Jan. 2, 2013) (finding claim that guard “fail[ed] to recognize” attacking inmate as

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plaintiff’s enemy amounted to “no more than negligence, which is an insufficient basis

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upon which to predicate a § 1983 claim.”).

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For these reasons, the Court finds Plaintiff’s failure to protect claims must be

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DISMISSED for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and

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§ 1915A(b)(1). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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IV.

Conclusion and Order

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Based on the foregoing, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 8).

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2)

DIRECTS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION;

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3)

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;

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DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

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DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 10).

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3:17-cv-00889-LAB-JLB

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5)

DISMISSES Plaintiff’s Complaint sua sponte for failing to state a claim

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upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1).

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GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

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which to file an Amended Complaint which cures the deficiencies of pleading noted.

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Plaintiff’s Amended Complaint must be complete by itself without reference to his

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original pleading. Defendants not named and any claim not re-alleged in his Amended

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Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy

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of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff’s use and

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to assist him in complying with LR 8.2.a’s requirements.

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IT IS SO ORDERED.

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Dated: September 11, 2017
HON. LARRY ALAN BURNS
United States District Judge

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