Shteynberg v. San Diego County Jail Sheriff's Department Medical Team

Filing 67

ORDER: (1) Dismissing Without Prejudice Plaintiff's 57 First Amended Complaint; (2) Denying 55 Motion for Electronic Notice; and (3) Denying 64 , 66 Motion to Appoint Counsel. Signed by Judge Janis L. Sammartino on 6/12/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUDOLF SHTEYNBERG,

Case No.: 17-CV-1098 JLS (KSC)
Plaintiff,

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ORDER: (1) DISMISSING
WITHOUT PREJUDICE
PLAINTIFF’S FIRST AMENDED
COMPLAINT; (2) DENYING
MOTION FOR ELECTRONIC
NOTICE; AND (3) DENYING
MOTION TO APPOINT COUNSEL

v.
SAN DIEGO COUNTY JAIL
SHERIFF’S DEPARTMENT MEDICAL
TEAM,

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Defendants.

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(ECF Nos. 55, 57, 64, 66)

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Presently before the Court is Plaintiff Rudolf Shteynberg’s First Amended

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Complaint, (“FAC,” ECF No. 57), as well as other motions and requests filed recently. On

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June 30, 2017, the Court granted Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”)

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and screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(a), (ECF No. 6). The

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Court determined that Plaintiff did not plead sufficient factual allegations for the Court to

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determine whether he stated a claim under 42 U.S.C. § 1983. (Id. at 4.) The Court

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dismissed Plaintiff’s Complaint and allowed Plaintiff thirty days to file an amended

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complaint. Instead of filing an amended Complaint, Plaintiff filed many other motions and

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requests, which the Court has denied for various reasons, primarily because Plaintiff had
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not filed an amended Complaint. Nearly a year after this Court’s Order dismissing his

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original Complaint, Plaintiff has finally filed an amended Complaint.

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I.

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

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The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

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and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from relief.”

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28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e)

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“not only permits but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim”).

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As amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)

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mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915

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make and rule on its own motion to dismiss before directing the Marshal to effect service

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pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette

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v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal.

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Jan. 9, 2013).

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All complaints must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a

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complaint states a plausible claim is context-specific, requiring the reviewing court to draw

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on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550

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U.S. at 556).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement of relief.”

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Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court
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must accept as true all allegations of material fact and must construe those facts in the light

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most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see

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also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).”).

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“While factual allegations are accepted as true, legal conclusions are not.” Hoagland

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v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012)

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(citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a

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complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal,

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556 U.S. at 679). Additionally, while the court “ha[s] an obligation where the petitioner is

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pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ.

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff has re-filed his original Complaint and added a new cover page, which

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together constitute his First Amended Complaint. (See FAC 1.) The new first page states

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that the “facts of Complain [sic] [illegible] Described in the original documents statements

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on the Date of 05/30/17.” (Id.) The amended Complaint goes on to state that the Sheriff’s

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Department “refused to provide treatment in timely manor [sic], which caused to Plaintiff

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suffering/pains (phisical [sic] + mental abuse).” (Id.) Plaintiff also alleges verbal abuse

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“(use of foul langage [sic])”, abuse by imposing psychiatric/medical treatment in excessive

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manner, refusal to provide access to his bank account to use money at the commissary, and

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“negligence of Religious Observance by personal beliefs.” (Id.)

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The original pages of his Complaint, attached to the First Amended Complaint

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provide few details. Plaintiff lists claims with no description as to what they mean. For

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example he writes, “a) False Arrest[s] by Police Officers B) Abuse of Authorities c)

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Lost/Stollen [sic] Personal Items exeedy [sic] amount of $800.00.” (Id. at 4.) There is no
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specific date of any of these events, just a broad range from “2014 – present.” (Id. at 5.)

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The most detail Plaintiff provides is that he is seeking recovery for personal injuries and

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medical negligence while he was in custody, but he generally lists conclusory legal

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statements. See Iqbal, 556 U.S. at 678 (“[T]he pleading standard Rule 8 announces does

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not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.” (citation omitted)).

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The Court acknowledges that Plaintiff’s First Amended Complaint provides some

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detail not previously included in his original Complaint. However, it is very difficult to

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understand what happened to Plaintiff. He does not provide specific dates, who harmed

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him, or any details. As this Court has repeatedly instructed Plaintiff, he needs to describe

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what happened to him. Previously, Plaintiff attempted to contact the Sheriff’s Department

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in an effort to receive a copy of his records. The Court appreciates Plaintiff’s efforts but

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emphasizes that he only needs to allege, in his own words, what occurred. Plaintiff has not

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done so. Based on the conclusory allegations in his First Amended Complaint, the Court

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cannot assess whether Plaintiff states a claim.

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In light of the foregoing, the Court finds that Plaintiff has failed to state a claim for

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relief, as required by 28 U.S.C. § 1915(e)(2), and DISMISSES WITHOUT PREJUDICE

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Plaintiff’s First Amended Complaint, (ECF No. 57).

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II.

Motion for Electronic Notice

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Plaintiff requests the Court contact him through his email address. (ECF No. 55.)

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Generally, “[e]xcept as prescribed by local rule, order, or other procedure, the Court has

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designated all cases to be assigned to the Electronic Filing System.” Civil Local Rule

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5.4(a). With respect to pro se litigants, however, “[u]nless otherwise authorized by the

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court, all documents submitted for filing to the Clerk’s Office . . . must be in legible, paper

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form.” Office of the Clerk, United States District Court for the Southern District of

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California, Electronic Case Filing Administrative Policies and Procedures Manual § 2(b)

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(2017). A party may seek leave to electronically file documents by filing a motion and

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demonstrating “the means to do so properly by stating [his] equipment and software
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capabilities in addition to agreeing to follow all rules and policies in the CM/ECF

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Administrative Policies and Procedures Manual.” See id.

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Here, Plaintiff provides no information demonstrating that he meets all the

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requirements to file electronically. Instead, he only requests the Clerk of Court email him.

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Plaintiff has not provided the Court with any information about his equipment and software

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capabilities. Because Plaintiff has failed to satisfy the requirements of pro se litigants

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seeking leave to file electronically as set forth in the CM/ECF Manual, Plaintiff’s Motion

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to file electronically is hereby DENIED WITHOUT PREJUDICE

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III.

Motion to Appoint Counsel

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Plaintiff also requests the Court appoint him counsel. (ECF Nos. 64, 66.) There is

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no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social Servs. of

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Durham Cnty., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district courts

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have some limited discretion to “request” that an attorney represent an indigent civil

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litigant, Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), this

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discretion is rarely exercised and only under “exceptional circumstances.” Id.; see also

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Here, Plaintiff’s First Amended Complaint provides the barest information

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necessary and the Court has dismissed it, per 28 U.S.C. § 1915(e)(2). At this stage, the

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Court cannot assess Plaintiff’s likelihood of success on the merits. The Court DENIES

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WITHOUT PREJUDICE Plaintiff’s Motions to Appoint Counsel, (ECF Nos. 64, 66).

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IV.

Conclusion

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For the reasons stated above, the Court:

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1)

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DISMISSES

WITHOUT

PREJUDICE

Plaintiff’s

First

Amended

Complaint, (ECF No. 57). Plaintiff MAY FILE an amended complaint within thirty (30)
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days from the date on which this Order is electronically docketed. Plaintiff is cautioned

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that should he choose to file a Second Amended Complaint, it must be complete by itself,

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comply with Federal Rule of Civil Procedure 8(a), and that any claim, against any

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defendant, not re-alleged will be considered waived. See Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (en banc) (noting that claims dismissed with leave to amend

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which are not re-alleged in an amended pleading may be “considered waived if not

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repled”). Should Plaintiff fail to file an amended complaint within the time provided, the

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Court may enter a final order dismissing this civil action with prejudice;

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2)

DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Electronic

Notification, (ECF No. 55);
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DENIES WITHOUT PREJUDICE Plaintiff’s Motions to Appoint Counsel,

(ECF Nos. 64, 66).
IT IS SO ORDERED.
Dated: June 12, 2018

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