Opinion
Case No. 18-04047 BLF (PR)
11-05-2018
SHIKEB SADDOZAI, Plaintiff, v. CARLOS BOLANOS, et al., Defendants.
ORDER OF DISMISSAL WITH LEAVE TO AMEND; DENYING MOTION FOR APPOINTMENT OF COUNSEL
(Docket No. 4)
Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against employees at the Maguire Correctional Facility ("MCF") in San Mateo County. Plaintiff's motion for leave to proceed in forma pauperis will be addressed in a separate order.
The matter was reassigned to this Court on July 25, 2018. (Docket No. 5.) --------
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 Defendant Lomu acted with deliberate indifference to serious medical needs in April 2016, when he disregarded requests for medical attention based on Plaintiff's complaints of abdominal pain and vomiting blood. (Compl. at 3.) Many hours later, Plaintiff was taken to the hospital where he was diagnosed with kidney stones. (Id. at 4.) After he was returned to MCF, Plaintiff complained of chronic constipation and abdominal pain to Defendant Copeland, who refused to notify medical personnel. (Id. at 5.) Liberally construed, these claims are sufficient to state a claim for deliberate indifference to serious medical needs under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).
Plaintiff names Sheriff Carlos Bolanos, Captain Scott Kirkpatrick, and Deputy Sheriff Mendez as defendants in this action but has alleged no specific facts against these defendants. Plaintiff shall be granted an opportunity to file an amended complaint to attempt to state a claim against these defendants that are supported by sufficient facts. In preparing an amended complaint, Plaintiff must keep the following principles in mind. Liability may be imposed on an individual defendant under § 1983 only if Plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633. Under no circumstances is there respondeat superior liability under section 1983. Or, in layman's terms, under no circumstances is there liability under section 1983 solely because one is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff also names MCF and the Correctional Health Services ("CHS") as defendants in this action. (Compl. at 2, 6.) Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior, see Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal liability under § 1983 for a violation of constitutional rights resulting from governmental inaction or omission, a plaintiff must show: "(1) that he possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation." Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotation marks omitted). Plaintiff fails to allege sufficient facts to state a Monell claim against the MCF or the CHS. He may attempt to do so in the amended complaint. C. Motion for Appointment of Counsel
Plaintiff has filed a motion for appointment of counsel based on indigency, the complexity of the issues, limited access to library and knowledge of the law, and that he would be better served by the assistance of counsel should this matter go to trial. (Docket No. 4.) However, 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); 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). Plaintiff's asserted grounds do not establish exceptional circumstances. Accordingly, the motion is DENIED for lack of exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This denial is without prejudice to the Court's sua sponte appointment of counsel at a future date should the circumstances of this case warrant such appointment.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
The complaint is DISMISSED with leave to amend. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint using the court's form complaint to state sufficient facts to state a claim against all named defendants. The amended complaint must include the caption and civil case number used in this order, Case No. C 18-04047 BLF (PR), and the words "AMENDED COMPLAINT" on the first page. Plaintiff must answer all the questions on the form complaint in order for the action to proceed.
The amended complaint supersedes the original, the latter being treated thereafter as non-existent. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, claims not included in an amended complaint are no longer claims and defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
In the alternative, Plaintiff may file notice, in the same time provided, that he wishes to strike Sheriff Carlos Bolanos, Captain Scott Kirkpatrick, Deputy Sheriff Mendez, MCF, and CHS as defendants from this action and proceed solely on the Eighth Amendment medical claims against Defendants Lomu and Copeland.
Failure to respond in accordance with this order in the time provided will result in the dismissal of this action without prejudice and without further notice to Plaintiff.
The Clerk shall include two copies of the court's form complaint with a copy of this order to Plaintiff.
This order terminates Docket No. 4.
IT IS SO ORDERED. Dated: November 5, 2018
/s/_________
BETH LABSON FREEMAN
United States District Judge