Cottle et al v. Gillispie et al

Filing 11

ORDER that the clerk of court shall file the complaint. IT IS FURTHER ORDERED that plaintiff Kim Holland is DISMISSED from this action. Clerk of Court shall send plaintiff Cottle a civil rights complaint form with instructions. Plaintiff will have 30 days from the date this order is entered to submit his amended complaint. Amended complaint shall be titled as directed in this order. IT IS FURTHER ORDERED that 2 Motion for leave to file 3 legal claims in one complaint is Granted in part. I T IS FURTHER ORDERED that 3 Motion to file longer than usual complaint is Granted. IT IS FURTHER ORDERED that 4 Motion to Appoint Counsel is Denied. IT IS FURTHER ORDERED that 5 Motion to Appoint Counsel is DENIED. IT IS FURTHER ORDERED that 6 Motion for Leave of Court is Denied as moot. IT IS FURTHER ORDERED that 7 Motion for leave is Denied as moot. Signed by Judge James C. Mahan on 9/1/10. (Copies have been distributed pursuant to the NEF - cc: plaintiff - EDS)

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Cottle et al v. Gillispie et al Doc. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Cottle has paid the initial partial filing fee. The court has reviewed his civil rights complaint pursuant to 42 U.S.C. 1983 and his other motions. Cottle will need to file an amended complaint. When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. 1915A(b). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, vs. DOUG GILLESPIE, et al., Defendants. SEAN COTTLE, et al., Plaintiff, Case No. 2:10-CV-00271-JCM-(PAL) ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1039 (9th Cir. 1980). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Cottle has named Kim Holland as another plaintiff, and he seeks to certify this action as a class action. Kim Holland has not signed the complaint. Despite Cottle's arguments to the contrary, Cottle has no involvement in the counts that involve Holland, which are counts 3 through 8. Furthermore, Cottle cannot maintain a class action because "[h]e has no authority to appear as an attorney for others than himself." McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). The Court will dismiss Kim Holland from this action. Much of the complaint is redundant. Count 2 alleges the same facts as count 1. Count 10 alleges the same facts as count 9. Count 13 alleges the same facts as count 12. Count 15 alleges the same facts as count 14. Count 21 alleges the same facts as count 20. Count 27 alleges half of the facts in count 28, and nothing more. Count 29 alleges the same facts as count 24. Counts 32 and 33 allege the same facts as count 31. Count 35 alleges the same facts as count 34. Counts 37, 38, and 39 allege the same facts as count 36. Counts 41, 42, and 43 allege the same facts as count 40. Counts 45 and 46 allege the same facts as count 44. In the amended complaint, Cottle needs to leave out the redundant counts. If he believes that a particular event violated more than one constitutional provision, then he should mention all of those provisions in the space provided at the top of each count in the complaint form. Some of the counts in the complaint are too vague. In count 20, Cottle alleges that officers at the Clark County Detention Center put two spit hoods upon him after he spat upon the floor. He alleges nothing else. In count 16, Cottle alleges that defendant Yanos perjured himself at the preliminary hearing. Cottle provides some quotations that might show how Yanos' statement was different from his testimony, but without any context. In count 31, Cottle alleges in full, "John Doe #6 placed me--Sean Cottle--into a restraining chair." In count 40, Cottle alleges in full, "John Doe #7 placed me--Sean Cottle--back into a restraining chair." Vague and conclusory allegations such as these are insufficient to state a claim upon which relief can be granted. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In many of his counts, Cottle alleges that his rights pursuant to the Eighth Amendment were violated. The Eighth Amendment's protections against cruel and unusual punishment apply only to punishment imposed as a result of conviction of a crime. Bell v. Wolfish, 441 U.S. 520, 535-37 & n.16 (1979). Cottle's claims refer only to his arrest and to his treatment as a pre-trial detainee in the Clark County Detention Center. The Eighth Amendment is inapplicable to Cottle's claims. He will need to mention the correct constitutional provisions in his amended complaint. In addition to correcting the above-noted defects, Cottle will need to re-allege all of his causes of action, or they will be waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Cottle has submitted a motion for leave to file (3) legal claims in one complaint (#2). The court grants this motion in part, except for the request to certify this action as a class action. Cottle has submitted a motion for "leave" of court (#3), in which he asks to file a longer-than-normal complaint. The court grants this request. Cottle has submitted a motion for appointment of class counsel and/or other counsel (#4), and a motion in support of appointment of counsel (#5). "There is no constitutional right to appointed counsel in a 1983 action. However, in `exceptional circumstances,' a district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. 1915[(e)(1)]. To decide whether these exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (internal quotations and citations omitted), withdrawn on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The court finds that exceptional circumstances do not exist in this case, and the court denies the motions. Cottle has submitted a motion for "leave" of court (#6). He asks the court to issue summons and to serve a copy of the complaint upon each defendant. If Cottle submits a complaint that states claims upon which relief can be granted, then officers of the court serve process pursuant to 28 U.S.C. 1915(d). This motion is moot. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action. Cottle has submitted a motion for leave (#7). He asks for the status of the case, which the court has given by this very order. This motion is moot. IT IS THEREFORE ORDERED that the clerk of the court shall file the complaint. IT IS FURTHER ORDERED that plaintiff Kim Holland is DISMISSED from this IT IS FURTHER ORDERED that the clerk shall send to Cottle a civil rights complaint form with instructions. Cottle will have thirty (30) days from the date that this order is entered to submit his amended complaint, if he believes that he can correct the noted deficiencies. Failure to comply with this order will result in the dismissal of counts 2-8, 10, 12, 13, 15, 20-23, and 25-46 from this action. IT IS FURTHER ORDERED that Cottle shall clearly title the amended complaint as such by placing the word "AMENDED" immediately above "Civil Rights Complaint Pursuant to 42 U.S.C. 1983" on page 1 in the caption, and Cottle shall place the case number, 2:10-CV-00271JCM-(PAL), above the word "AMENDED." IT IS FURTHER ORDERED that Cottle's motion for leave to file (3) legal claims in one complaint (#2) is GRANTED in part. IT IS FURTHER ORDERED that Cottle's motion for "leave" of court (#3), in which he asks to file a longer-than-normal complaint is GRANTED. IT IS FURTHER ORDERED that Cottle's motion for appointment of class counsel and/or other counsel (#4) is DENIED. IT IS FURTHER ORDERED that Cottle's motion in support of appointment of counsel (#5) is DENIED. IT IS FURTHER ORDERED that Cottle's motion for "leave" of court (#6) is DENIED as moot. /// /// /// /// -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 moot. IT IS FURTHER ORDERED that Cottle's motion for leave (#7) is DENIED as DATED: September 1, 2010. _________________________________ JAMES C. MAHAN United States District Judge -5-

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