Howard v. Scripps Mercy Hospital et al

Filing 9

ORDER denying 4 Motion to Appoint Counsel and dismissing First Amended Complaint with prejudice and without leave to amend for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b). Signed by Judge John A. Houston on 7/07/2017. (All non-registered users served via U.S. Mail Service)(jpp) (sjt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRANDON L. HOWARD,
Booking # 17111962,

Case No.: 3:17-cv-0924-JAH-KSC
ORDER:

Plaintiff,

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vs.

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1) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 4]

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SCRIPPS MERCY HOSPITAL;
SCRIPPS MERCY HOSPITAL
SECURITY; RECEPTIONIST STAFF;
JOE WALLACE; VINCENT MONTERO

AND
2) DISMISSING FIRST AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO 28
U.S.C. § 1915(e)(2) AND § 1915A(b)

Defendants.

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I.

Procedural History
On May 4, 2017, Plaintiff, Brandon L. Howard, currently housed at the George

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Bailey Detention Facility (“GBDF”) located in San Diego, California filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because Plaintiff’s

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Motion to Proceed IFP complied with 28 U.S.C. § 1915(a)(2), the Court granted him

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leave to proceed without full prepayment of the civil filing fees, but dismissed his
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3:17-cv-0924-JAH-KSC

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

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(ECF No. 5.) On May 10, 2017, Plaintiff filed a Motion to Appoint Counsel and on June

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2, 2017, he filed a First Amended Complaint (“FAC”) followed a few days later by

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“supplemental documents.” (ECF Nos. 4, 8.)

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II.

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Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
As the Court stated in its previous Order, because Plaintiff is a prisoner and is

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proceeding IFP, his FAC requires a pre-Answer screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

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§ 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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680, 681 (7th Cir. 2012)).

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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 to “contain sufficient factual matter,

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

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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1.

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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

42 U.S.C. § 1983

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privileges, or immunities secured by the Constitution and laws” of the United States.

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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a person

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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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2.

Rule 8

As an initial matter, the Court finds that Plaintiff’s FAC, once again, fails to

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comply with Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in

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order to state a claim for relief in a pleading it must contain “a short and plain statement

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of the grounds for the court’s jurisdiction” and “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). In addition,

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“the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’

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but it demands more than an unadorned, the defendant-unlawfully-harmed-me

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accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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3.

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Here, while it is not entirely clear from Plaintiff’s FAC, the documents he has

Private parties

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submitted indicate that he is attempting to hold private security officers employed by a

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hospital liable for alleged injuries. (See ECF No. 8 at 1-22.) Plaintiff appears to have

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been involved in a physical altercation with Defendants. (Id.) However, none of the

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named Defendants are alleged to be “person[s] acting under color of state law.” See West;

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487 U.S. at 48; Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.

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1999) (The party charged with a constitutional deprivation under § 1983 must be a person

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who may fairly be said to be a governmental actor) (citation and quotations omitted).

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The Constitution protects individual rights only from government action and not
from private action; it is only when the government is responsible for the specific conduct
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of which the plaintiff complains that individual constitutional rights are implicated.

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Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Generally,

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private parties do not act under color of state law. See Price v. Hawai’i, 939 F.2d 702,

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707-08 (9th Cir. 1991). Section “1983 excludes from its reach merely private conduct, no

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matter how discriminatory or wrong.” Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins.

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Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted));

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see also Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private

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actor may be liable for his misconduct in state court, but his conduct is not actionable

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under Section 1983, regardless of how egregious).

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In order for private conduct to constitute governmental action, “something more”

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must be alleged. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) (“Action

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by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to

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justify a characterization of that party as a ‘state actor.’”). Courts have used four different

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factors or tests to identify what constitutes “something more”: (1) public function, (2)

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joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. See

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id.; Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project Agric.

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Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir. 1989).

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Here, Plaintiff has failed to allege facts sufficient to plausibly show that any of the

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private parties or organizations he has named as Defendants performed any public

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function traditionally reserved to the state, acted as willful participants in joint action

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with government agents, was compelled or coerced, or had any connection whatsoever

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with the state, when they allegedly injured Plaintiff. See Iqbal, 556 U.S. at 678; Lugar,

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457 U.S. at 939.

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4.

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A pro se litigant must be given leave to amend his or her complaint to state a claim

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unless it is absolutely clear the deficiencies of the complaint cannot be cured by

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amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when

Leave to Amend

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a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the

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plaintiff can correct the defect”). However, Plaintiff has been notified of the deficiencies

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of pleading in the Court’s previous Order but failed to make any attempt to cure that

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pleading defect in his FAC. Because it is clear that any amendment would be futile, the

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Court declines to grant Plaintiff leave to amend. See Cahill v. Liberty Mut. Ins. Co., 80

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F.3d 336, 339 (9th Cir. 1996) (denial of leave to amend is not an abuse of discretion where

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further amendment would be futile); Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)

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(“While Fed.R.Civ.P. 15(a) encourages leave to amend, district courts need not

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accommodate futile amendments.”)

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III.

Motion for Appointment of Counsel
Finally, Plaintiff has filed a letter to the Court which the Court construes as a

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“Motion to Appoint Counsel.” (ECF No. 4.) There is no constitutional right to counsel

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in a civil case. Lassiter v. Dept. of Social Servs, 452 U.S. 18, 25 (1981). And while 28

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

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attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390

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

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circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A

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finding of exceptional circumstances requires “an evaluation of the likelihood of the

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plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his

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claims ‘in light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at

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1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request because, as stated above, Plaintiff cannot

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demonstrate a likelihood of success on the merits. In addition, while Plaintiff does have

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difficulty articulating his claims, the legal issues involved are not complex and Plaintiff

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cannot proceed on these claims in this matter even if an attorney was appointed.

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Therefore, no exceptional circumstances warrant the appointment of counsel at this time.

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LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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IV.

Conclusion and Order

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Good cause appearing, the Court:

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1.

DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 4); and

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2.

DISMISSES Plaintiff’s FAC with prejudice and without leave to amend for

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failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)

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and § 1915A(b).

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IT IS SO ORDERED.

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Dated: July 7, 2017
HON. JOHN A. HOUSTON
United States District Judge

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