Opinion
Case No. 19-01345 EJD (PR)
03-20-2020
CHARLES NICHOLSON, Plaintiff, v. D. SANDO, Defendant.
ORDER OF SERVICE; DENYING MOTION FOR APPOINTMENT OF COUNSEL; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK
(Docket No. 9)
Plaintiff, a California state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against Correctional Officer D. Sando at Salinas Valley State Prison ("SVSP"), where he was formerly housed. Plaintiff's
DISCUSSION
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). B. Plaintiff's Claims
Plaintiff claims that on July 29, 2019, Defendant Correctional Officer Sando used pepper spray on him while Plaintiff was merely attempting to walk into his cell. Dkt. No. 1 at 11. Plaintiff claims he had mechanical waist restraints on at the time. Id. Plaintiff claims he was not allowed to shower and properly decontaminate, resulting in the loss of vision and breathing problems. Id. Plaintiff claims Defendant Sando's actions violated the Eighth Amendment because he maliciously and sadistically used pepper spray to cause harm, and that Defendant's refusal to allow Plaintiff to shower and decontaminate showed a total disregard to the harm he exposed Plaintiff to and jeopardized his health and safety. Id. at 15. Plaintiff seeks damages as well as declaratory and injunctive relief. Id. at 3.
Liberally construed, Plaintiff's allegations state cognizable Eighth Amendment claims for excessive force based on the unwarranted use of pepper spray, see Hudson v. McMillian, 503 U.S. 1, 8 (1992), and the deliberate indifference to Plaintiff's health, see Helling v. McKinney, 509 U.S. 25, 31 (1993). C. Request for Appointment of Counsel
In a brief letter filed with the Court, Plaintiff requests appointment of counsel. Dkt. No. 9. There is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981)1; Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an indigent litigant under § 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the "exceptional circumstances" of the plaintiff seeking assistance requires an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand,113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under § 1915. See id. Plaintiff asserts that he is mentally ill and "don't exactly know what to do." Dkt. No. 9. However, he has managed, in pro se, to clearly articulate his claims and the Eighth Amendment issues involved are not complex. Furthermore, if Plaintiff's allegations are substantiated, he has a good likelihood of success on the merits. Accordingly, Plaintiff's motion for appointment of counsel is DENIED without prejudice for lack of exceptional circumstances. See Rand, 113 F.3d at 1525; Terrell, 935 F.2d at 1017; Wilborn, 789 F.2d at 1331.
CONCLUSION
For the reasons state above, the Court orders as follows:
1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint, Dkt. No. 1, all attachments thereto, and a copy of this order upon Defendant Correctional Officer D. Sando at Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Clerk shall also mail a copy of this Order to Plaintiff.
2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the day on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.
3. No later than ninety-one (91) days from the date this order is filed, Defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims found to be cognizable above.
a. Any motion for summary judgment shall be supported by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If any Defendant is of the opinion that this case cannot be resolved by summary judgment, he shall so inform the Court prior to the date the summary judgment motion is due.
b. In the event Defendants file a motion for summary judgment, the Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate warnings under Rand v. Rowland , 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See Woods v. Carey , 684 F.3d 934, 940 (9th Cir. 2012).
4. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than twenty-eight (28) days from the date Defendants' motion is filed.
Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that failure to file an opposition to Defendants' motion for summary judgment may be deemed to be a consent by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).
5. Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff's opposition is filed.
6. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.
7. All communications by the Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.
8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery.
9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
10. Extensions of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause.
11. Plaintiff's motion for appointment of counsel is DENIED without prejudice. Dkt. No. 9.
This order terminates Docket No. 9.
IT IS SO ORDERED. Dated: 3/20/2020
/s/_________
EDWARD J. DAVILA
United States District Judge