Cook v. LaRoche et al

Filing 5

ORDER (1) granting 2 Motion for Leave to Proceed in forma pauperis; (2) Denying 4 Motion for Appointment of counsel; and (3) Dismissing claims for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b). Plaintiff forty-five (45) d ays leave to either: (1) file a First Amended Complaint which cures all the deficiencies of pleading described in this Order; or (2) notify the Court of the intention to proceed as to the excessive force claims only.Signed by Judge John A. Houston on 10/23/2017. (cc: Watch Commander, George F. Bailey Detention Facility). (All non-registered users served via U.S. Mail Service)(jpp)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DANIEL MOSES COOK,
Inmate Booking #17145418,
vs.

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-01826-JAH-JMA

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2];

JONATHAN LAROCHE; JOSEPH
GOMES; SAN DIEGO COUNTY
SHERIFF'S DEP'T; JACK IN THE BOX,

(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 3); and

Defendants.

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

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Daniel Moses Clark (“Plaintiff”), currently incarcerated at the George Bailey

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Detention Facility (“GBDF”) located in San Diego, California, and proceeding pro se,

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has filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a), along with a Motion to Appoint Counsel. (ECF Nos. 2,

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4.)
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I.

Motion to Appoint Counsel

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Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 4.)

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

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Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district

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

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

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

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also 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

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

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Applying these factors to Plaintiff’s case, the Court DENIES his Motion to

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Appoint Counsel because a liberal construction of his original pleadings shows he is

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capable of articulating the factual basis for his claims. All documents filed by pro se

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litigants are construed liberally, and “a pro se complaint, however inartfully pleaded,

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must be held to less stringent standards than formal pleadings drafted by lawyers.”

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Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that

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“[p]leadings . . . be construed so as to do justice.”

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The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be

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a trained in law, he is capable of legibly articulating the facts and circumstances relevant

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to his claims, which are typical, straightforward, and not legally “complex.” Agyeman,

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390 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional

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circumstances warrant the appointment of counsel in this case at this time. LaMere v.

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

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II.

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

United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400. 1 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). However,

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prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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“certified copy of the trust fund account statement (or institutional equivalent) for ... the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a prison certificate completed

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by a GBDF accounting official attesting to his trust account activity and balances for the

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six-months preceding the filing of his Complaint. See ECF No. 2 at 2; 28 U.S.C.

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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§ 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show

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that Plaintiff had an average monthly balance of $3.34, and average monthly deposits of

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$150.00 to his account over the 6-month period immediately preceding the filing of his

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Complaint, as well as an available balance of $6.67 at the time of filing. See ECF No. 2 at

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2. Based on this financial information, the Court GRANTS Plaintiff’s Motion to Proceed

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IFP (ECF No. 2), and assesses his initial partial filing fee to be $30.00 pursuant to 28

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U.S.C. § 1915(b)(1).

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However, the Court will direct the Watch Commander for GBDF, or his designee,

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to collect this initial fee only if sufficient funds are available in Plaintiff’s account at the

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time this Order is executed. 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.”). The remaining balance of the $350 total fee owed in

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this case must be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C.

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§ 1915(b)(1).

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III.

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Initial Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
The Court is obligated by the Prison Litigation Reform Act (“PLRA”) to review

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complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are

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“incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program,” at the time of filing “as soon as practicable

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after docketing.” See Doc. No. 8 at 4; 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the

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PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,
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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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A.

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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

Standard of Review

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suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

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n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

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(7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a

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claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,

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1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the

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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)”).

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Every complaint must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations

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

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by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded

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factual allegations, a court should assume their veracity, and then determine whether they

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plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a

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complaint states a plausible claim for relief [is] . . . a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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

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While a plaintiff’s factual allegations are taken as true, courts “are not required to

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indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

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627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

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(9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

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pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

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civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.

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B.

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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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Here, the Court finds that Defendant Jack in the Box, a purported corporation, is

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not alleged to be “person[s] acting under color of state law.” See West; 487 U.S. at 48;

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Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party

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charged with a constitutional deprivation under § 1983 must be a person who may fairly

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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

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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 the

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corporation he has named as Defendant performed any public function traditionally

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reserved to the state, acted as a willful participant in joint action with government agents,

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was compelled or coerced, or had any connection whatsoever with the state, when it

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allegedly injured Plaintiff. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939.

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C.

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In addition, to the extent Plaintiff seeks damages against Defendants and claims

Heck Bar

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they falsely arrested him, he may not pursue those claims in a civil rights action pursuant

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to 42 U.S.C. § 1983, without first showing his conviction has already been invalidated.

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See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

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In Heck, the Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Id. at 486-87.
“Suits challenging the validity of the prisoner’s continued incarceration lie within

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‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state

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prisoner who is making a constitutional challenge to the conditions of his prison life, but

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not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.

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2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of

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habeas corpus is “explicitly and historically designed” to provide a state prisoner with the

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“exclusive” means to “attack the validity of his confinement” in federal court).

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Because Plaintiff seeks damages based on an arrest he alleges was “false” and

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based on perjured testimony (ECF No. 1 at 3-4), his claims amount to an attack on the

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validity of his underlying criminal conviction, and may not proceed pursuant to § 1983,

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unless his conviction has already been invalidated. Heck, 512 U.S. at 486-87; Ramirez,

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334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner who has fully exhausted

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available state remedies has no cause of action under § 1983.’”), quoting Heck, 512 U.S.

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at 489. While Plaintiff identifies no specific acts of misconduct taken by the Defendants

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prior to or during the course of his criminal proceedings, except to point to the “false

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narratives, contentious charges and overzealous attacks” (ECF No. 1 at 4), see Iqbal, 556

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U.S. at 677 (noting that “[a]bsent vicarious liability, each Government official, his or her

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title notwithstanding, is only liable for his or her own misconduct”), the Court will
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presume he intends to sue these law enforcement officials for acting together to

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wrongfully convict him in violation of “due process.” (ECF No. 1 at 4).

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However, such claims “necessarily imply the invalidity” of his conviction and

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continued incarceration. Heck, 512 U.S. at 487. In other words, were Plaintiff to succeed

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in showing that Defendants conspired to wrongfully convict him based on false evidence

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or perjured testimony, an award of damages would “necessarily imply the invalidity” of

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his conviction and/or sentence. Id., 512 U.S. at 487; see also Guerrero v. Gates, 442 F.3d

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697, 701 (9th Cir. 2006) (finding § 1983 action stemming from allegations of wrongful

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arrest, malicious prosecution, and a general conspiracy of “bad behavior” among officials

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in connection with the plaintiff’s arrest, prosecution, and incarceration were barred by

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Heck).

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D.

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The Court also finds Plaintiff’s Complaint requires sua sponte dismissal pursuant

Defendant San Diego Sheriff’s Department

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to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) to the extent it seeks relief under

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§ 1983 against the San Diego Sheriff’s Department. The San Diego Sheriff’s

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Department, unlike the County of San Diego itself, is not subject to suit under § 1983.

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See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a

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municipal department as a defendant is not an appropriate means of pleading a § 1983

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action against a municipality.”); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D.

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Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s

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constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’)).

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Therefore, while the County of San Diego may be considered a “person” subject to suit

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under § 1983, see Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)

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(citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)), its Sheriff’s Department

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may not.

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E.

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Plaintiff alleges that he was treated by an unnamed medical doctor while housed by

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Medical care claims

the San Diego Sheriff’s Department for “blood and discharge” coming from his ear due
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to the alleged excessive force incident. (Compl. at 6.) Plaintiff claims the Doctor

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provided him with “ear drops and antibiotics” but only referred to his condition as a

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“mild ear infection.” (Id.)

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Prison officials are liable only if they are deliberately indifferent to the prisoner’s

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serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Clouthier

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v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying Estelle’s

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Eighth Amendment deliberate indifference standard to inadequate medical care claims

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alleged to violate a pretrial detainees’ due process rights).

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Here, Plaintiff claims suffered from “blood and discharge” from his ear for up to

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twelve days, but he fails to include any further “factual matter” sufficient to show or

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describe how or to what extent his medical needs were objectively serious. See

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (defining a “serious medical

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need” as one which the “failure to treat ... could result in further significant injury or the

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‘unnecessary and wanton infliction of pain.’”), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (citing Estelle, 429 U.S. at

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104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’”) (quoting

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Twombly, 550 U.S. at 570). The “existence of an injury that a reasonable doctor or patient

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would find important and worthy of comment or treatment; the presence of a medical

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condition that significantly affects an individual’s daily activities; or the existence of

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chronic and substantial pain are examples of indications that a prisoner has a ‘serious’

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need for medical treatment.” McGuckin, 974 F.3d at 1059-60.

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Moreover, even if the Court assumes Plaintiff’s ear condition was an “objectively

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serious” medical condition, nothing in his Complaint supports a “reasonable inference

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that [any individual] defendant” acted with deliberate indifference to his plight. Iqbal,

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556 U.S. at 678. “In order to show deliberate indifference, an inmate must allege

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sufficient facts to indicate that prison officials acted with a culpable state of mind.”

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Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must
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be substantial; inadequate treatment due to malpractice, or even gross negligence, does

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not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”)

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(citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)). A difference of opinion between a pretrial detainee and

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the doctors or other trained medical personnel at the Jail as to the appropriate course or

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type of medical attention he requires does not amount to deliberate indifference, see Snow

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v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240,

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242 (9th Cir. 1989)), and any delay in providing an appropriate course of treatment does

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not by itself show deliberate indifference, unless the delay is alleged have caused harm.

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See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766

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F.2d 404, 407 (9th Cir. 1985); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989)

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(“[D]elay in providing a prisoner with dental treatment, standing alone, does not

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constitute an Eighth Amendment violation.”).

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Plaintiff’s Complaint, as currently pleaded, does not include facts to show that any

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individual San Diego Sheriff’s Department official actually knew of, yet disregarded any

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serious medical need. See Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir.

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2002) (“[D]eliberate indifference requires the defendant to be subjectively aware that

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serious harm is likely to result from a failure to provide medical care.”). Nor does it

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allege that any decision to refuse or delay a particular course of medical treatment caused

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him actual harm. See McGuckin, 974 F.2d at 1060. Without more, Plaintiff’s Complaint

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currently amounts only to “unadorned, the defendant[s]-unlawfully-harmed-me

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accusation[s],” which “stop[] short of the line between possibility and plausibility of

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‘entitlement to relief’” as to any constitutionally inadequate medical care claim. Iqbal,

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556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

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F.

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The Court does find that Plaintiff’s excessive force allegations are sufficient to

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Excessive force claims

survive the “low threshold” for proceeding past the sua sponte screening required by 28
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U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges excessive force claims as to

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Defendants LaRoche and Gomes which are plausible on its face.2 See Wilhelm, 680 F.3d

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at 1123. See Iqbal, 556 U.S. at 678; Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct.

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2466, 2473 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use

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of excessive force that amounts to punishment.”) (citing Graham v. Connor, 490 U.S.

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386, 395 n.10 (1989)). Under Kingsley, a pretrial detainee, unlike a convicted prisoner,

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need not prove that the defendant subjectively knew that the force applied was excessive;

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that state-of-mind inquiry is “solely ... objective.” Id. at 2473; Austin v. Baker, 616 F.

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App’x 365, 366 (9th Cir. 2015); cf. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (when

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prison officials stand accused of using excessive force in violation of the Eighth

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Amendment, the core judicial inquiry is “... whether force was applied in a good-faith

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effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”).

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G.

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A pro se litigant must be given leave to amend his pleading to state a claim unless

Leave to Amend

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

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at 1130 (noting leave to amend should be granted when a complaint is dismissed under

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28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).

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Therefore, the Court will grant him a chance to fix the pleading deficiencies discussed in

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this Order or he may notify the Court of the intent to proceed as to the excessive force

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claims only. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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If Plaintiff notifies the Court of his intention to proceed as to the excessive force
claims only, the Court will enter an order dismissing all the remaining claims and

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2

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative
of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual
defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.
Cal. 2007).

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Defendants, as well as directing the United States Marshals Service to effect service of

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the Complaint on Defendants LaRoche and Gomes.

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IV.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 4) without

prejudice.
2.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
3.

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

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

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

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

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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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4.

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

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Commander, George F. Bailey Detention Facility, 446 Alta Road, #5300, San Diego,

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California 92158.

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5.

DISMISSES Plaintiff’s claims, with the exception of Plaintiff’s excessive

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force claims, for failing to state a claim upon which § 1983 relief can granted pursuant to

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28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

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6.

GRANTS Plaintiff forty-five (45) days leave to either: (1) file a First

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Amended Complaint which cures all the deficiencies of pleading described in this Order;

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or (2) notify the Court of the intention to proceed as to the excessive force claims only.

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Plaintiff is cautioned, however, that should he choose to file a First Amended Complaint,

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it must be complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that

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any claim not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
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(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

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896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

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re-alleged in an amended pleading may be “considered waived if not repled.”).

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If Plaintiff fails to follow these instructions and/or files a First Amended

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Complaint that still fails to state a claim, his case may be dismissed without further leave

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to amend. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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IT IS SO ORDERED.

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Dated: October 23, 2017
HON. JOHN A. HOUSTON
United States District Judge

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