Opinion
Case No. CV03-533-S-MHW
December 18, 2003
INITIAL REVIEW ORDER
On December 10, 2003, the Clerk of Court conditionally filed Plaintiffs Complaint, subject to review by the Court to determine whether the Complaint is subject to summary dismissal under 28 U.S.C. § 1915 and 1915A.
Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I.
REVIEW OF COMPLAINTA. Standard of Law
The Court is required to review complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C, §§ 1915 and 1915A. The Court must dismiss a complaint or any portion thereof which states a claim that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. §§ 1915(e) and 1915A.
Plaintiff seeks redress for his constitutional claims under 42 U.S.C. § 1983, the civil rights statute. To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law, Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
B. Discussion
Plaintiff asserts that, while he was incarcerated at the Idaho Maximum Security Institution (IMSI), Defendants deliberately "set up" a situation in which an inmate was allowed to kick him in the abdomen and groin. He asserts that Defendants denied him medical care for several days thereafter, despite his severe pain. He also alleges that Defendants repeatedly harassed him. Plaintiff, a Washington prisoner, has since been transferred to a Washington state prison. The Court will discuss each of these claims.
1. Failure to Protect
Plaintiff alleges that Defendants "set up" a situation in which they knew that an inmate who did not like Plaintiff would be able to assault him. To prevail on an Eighth Amendment "prison conditions" claim based on failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). When a prison official is deliberately indifferent to a substantial risk of serious harm, his conduct violates the Eighth Amendment. Id., 511 U.S. at 828. "Deliberate indifference" requires a showing that the official was "subjectively aware of the risk." Id., 511 U.S. at 829. Liberally construed, Plaintiff's complaint states a colorable claim for relief under § 1983.
2. Eighth Amendment Harassment
Inmates have an Eighth Amendment right to be free from "calculated harassment unrelated to prison needs." Hudson v. Palmer, 468 U.S. 517, 530 (1984). Courts have construed the term "calculated harassment" to require "a pattern of harassment," Bolar v. State, No. CY-92-3071-JBH. 1993 WL 113280, at *5 (E.D. Wash. 1993), more than "a single incident," Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989) (citing Hudson v. Palmer and Whitley v. Albers, 475 U.S. 312 (1986)), and more than "two cell searches in a week, even with the dumping of plaintiff's legal papers and other personal effects," Theodore v. Coughlin, No. 83-CTV-6668 (LLS), 1986 WL 11456, at *2 (S.D.N.Y. 1986). In Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991), the court found that a claim of nineteen searches in ten days was enough to make out a prima facie case of calculated harassment motivated by retaliation for the prisoner's efforts to blow the whistle on a corrupt guard. Plaintiff asserts many incidents of harassment in his Complaint, which are sufficient to state a colorable calculated harassment claim.
3. Eighth Amendment Medical Indifference
For an inmate to state a claim under § 1983 for denial of medical care, the prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Hudson v. McMillian, 503 U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). Plaintiff claims that the individual Defendants were deliberately indifferent to his serious medical condition. These allegations are sufficient to state an Eighth Amendment claim.
C. Conclusion
Plaintiff has stated colorable claims against Defendants. He also alleges that he has exhausted the inmate grievance system. Plaintiff will be allowed to proceed on his claims. Plaintiff should be aware that this is only a preliminary assessment of the bare allegations of the Complaint, and that his claims may be subject to dismissal prior to trial depending upon Defendants' defenses.
Plaintiff should also be aware that the Clerk of Court cannot effect service on "John Doe" Defendants. If the Idaho Attorney General does not waive service as to the "John Doe" Defendants, then Plaintiff will have to utilize discovery methods to obtain their true names and to provide the Court with a service address for each. Failure to do so will result in dismissal of the claims against these Defendants without prejudice.
II. REQUEST FOR IN FORMA PAUPERIS STATUS
In order for any litigant to file a civil complaint in federal court, that litigant must either pay the filing fee in full at the time of filing or seek in forma pauperis status, which allows the litigant to pay the filing fee over time. In either case, the litigant must pay the full filing fee for having filed the complaint, regardless of whether that person's case is eventually dismissed or is unsuccessful.
Plaintiff has filed a Motion to Proceed in Forma Pauperis. He has completed a Financial Affidavit showing that he is indigent, and has provided a Statement of Trust Account showing average monthly receipts of 19 cents. Good cause appearing, the Court finds it appropriate to grant Plaintiffs Motion to Proceed in Forma Pauperis, which allows Plaintiff to pay the filing fee over time according to the schedule set forth in 28 U.S.C, § 1915(b)(1).
Because the Court does not know the current balance of Plaintiff s account, it will waive payment of an initial partial filing fee. Plaintiff shall be required to make monthly payments of twenty (20) percent of the preceding month's income credited to his institutional account. Plaintiff shall forward payments from his account to the Clerk of the Court each month, until the filing fees are paid in full. Plaintiff shall also file a quarterly summary of his monthly income with this Court. Failure to file statements or failure to make payments when monies have been received may result in dismissal of this case.
III. MOTION FOR APPOINTMENT OF COUNSEL
Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake, Lassiter v. Dept, of Social Services, 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986).
In civil cases, counsel should be appointed only in "extraordinary cases." Id. at 1330. To determine whether extraordinary circumstances exist, the court should evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id.
Applying the factors to this case, the Court finds that Plaintiffs Complaint, liberally construed, states claims upon which relief could be granted if the allegations are proven at trial. However, without more than the bare allegations of the Complaint, it is presently impossible to determine the likelihood of Plaintiffs success on the merits. The Court also finds that Plaintiff has articulated his claims sufficiently, and that the legal issues are not complex in this matter. Based on the foregoing reasons the Court finds it appropriate to deny Plaintiffs Motion for Appointment of Counsel. If it seems appropriate at a later date in this litigation, the Court will reconsider appointing counsel.
IV. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs Motion to Proceed in Forma Pauperis (Docket No. 1) is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action according to the schedule set forth herein. Plaintiff will not be assessed an initial partial filing fee at this time. Plaintiff shall be required to make monthly payments of twenty (20) percent of the preceding month's income credited to his institutional account. Plaintiff shall forward payments from his account to the Clerk of the Court each month, until the filing fees are paid in full. Plaintiff shall also file a quarterly summary of his monthly income with this Court. Failure to file statements or failure to make payments when monies have been received may result in dismissal of this case.
IT IS FURTHER HEREBY ORDERED that Plaintiffs Motion to Allow Filing of Case without Complete Statement of Trust Fund Account (Docket No. 5) is MOOT.
IT IS FURTHER HEREBY ORDERED that Plaintiffs Motion for Appointment of Counsel (Docket No. 6) is DENIED.
IT IS FURTHER HEREBY ORDERED that the named Defendants shall be allowed to waive service of summons by executing, or having their counsel execute, the Waiver of Service of Summons as provided by Federal Rule of Civil Procedure 4(d) and returning it to the Court within thirty (30) days. If Defendants choose to return the Waiver of Service of Summons, the answer or pre-answer motion shall be due in accordance with Rule 12(a)(1)(b). Accordingly, the Clerk of Court shall forward a copy of the Complaint (Docket No. 4), and a copy of this Order, and a Waiver of Service of Summons to the following counsel on behalf of all Defendants;
Timothy McNeese, Attorney General for the State of Idaho Idaho Department of Corrections 1299 North Orchard, Ste. 110.
Should counsel determine that the individuals for whom he was asked to waive service are not, in fact, the State's employees or former employees, or that counsel will not be appearing for particular Defendants, he should notify the Court's Pro Se Department immediately, at (208) 334-1172, so that further efforts to accomplish service can be made immediately to avoid undue delay in this case.
IT IS FURTHER HEREBY ORDERED that each party shall ensure that all documents filed with the Court are simultaneously served by first-class mail upon the opposing party (through counsel if the party has counsel), pursuant to Federal Rule of Civil Procedure 5. Each party shall sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of service, and name of person upon whom service was made. The Court will not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rules of Civil Practice before the United States District Court for the District of Idaho 7.2. (" Ex parts" means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.)
IT IS FURTHER HEREBY ORDERED that all Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rule of Civil Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United States District Court for the District of Idaho 5.1 and 7.1. The Court will not consider requests made in the form of letters.
IT IS FURTHER HEREBY ORDERED that Plaintiff shall notify the Court immediately if his address changes. Failure to do so may be cause for dismissal of this case without further notice.
UNITED STATES DISTRICT DISTRICT OF IDAHO
Form 1 B. Waiver of Service of Summons
TO: Adelaido Samuel Trujiilo (name of plaintiffs allorney or unrepresented plaintiff)
I acknowledge receipt of your request that I waive service of a summons in the action of Trujiilo v. Sergeant Tally, et al (caption of action) which is case number CV03-533-S-MHW in the United States (docket number)
District Court for the District of Idaho. I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can return the signed waiver to you without a cost to me.
I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4.
I (or the entity on whose behalf! am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the summons or in the service ofthe summons.
I understand that a judgment may be entered against me (or the party on whose behalf 1 am acting) if an answer or motion under Rule 12 is not served upon you within 60 days after December 19, 2003, (date request was sent) or within 90 days after that date if the request was sent outside the United States.
_________________ ____________________ (Date) (Signature)
____________________ (Printed/Typed Name)
[as____________________________]
[of____________________________]
Duty to Avoid Unnecessary Costs of Service of Summons:
It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an Improper place or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the Summons retains all defenses and objections (except any relating to the Summons or to the service of the summons), and may later object to the jurisdiction ofthe court or to the place where the action has been brought.
Rule 4 of the Federal Rules of Civil Procedure require certain parties to cooperate in saving unnecessary costs of service of the summons and complaint, A defendant who, after being notified of an action and asked to waive service of a summons, fails to do so will he required to bear the cost of such service unless good cause be shown for Its failure to sign And return the waiver. A defendant who waives service must within the time specified of the waiver form serve on the plaintiffs attorney (or unrepresented plaintiff) a response to the complaint and must also file a signed copy ofthe response with the court. If the answerer motion is not served within this time, u default judgment may he taken against the defendant. By waiving service, a defendant is allowed more time to answer than if the summons has been actually served when the request for Waiver of service was received.
UNITED STATES DISTRICT COURT DISTRICT OF IDAHO
Form 1 A. Notice of Lawsuit and Request for Waiver of Service of Summons
TO: Timothy McNeese,
(name of individual defendant or name of officer OT agent of corporate defendant)
as Deputy Attorney General for the State of Idaho. Department of Corrections
(title or other relationship of individual to corporate defendant)
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the District of Idaho and has been assigned docket number
CV03-533-S-MHW — Trujillo v. Sergeant Tally, et al (docket number of action)
This is not a formal summons or notification from the court, but rather my request that you sign and return the enclosed waiver of service in order to save the costs of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of the waiver within 30 days (60 days if defendant is located in a foreign country) after the date designated below as the date on which this Notice and Request is sent. 1 enclose a stamped and addressed envelope (or other means of cost-free return) for your use. TWO extra copies of the waiver are also attached one for your records, the other should be returned to the plaintiff.
If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent (or before 90 days from that date if your address is not in any judicial district of the United States).
If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, as authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons which is set forth at the foot of the waiver form.
I affirm that this request is being sent to you on behalf of the plaintiff, this 19th day of December, 2003.
Kathleen A. Stutzman, Deputy Clerk (on behalf of indigent plaintiff)