Opinion
2:22-cv-01592-EFB (PC)
04-17-2023
RAYON JONES, Plaintiff, v. RAYMOND MADDEN, et al., Defendants.
ORDER
EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A (ECF No. 10), plaintiff has filed an amended complaint (ECF No. 15), which also must be dismissed with leave to amend. Plaintiff also renews his request for appointment of counsel. ECF No. 16.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).
Request for Appointment of Counsel
District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Woodv. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case.
Screening Order
Plaintiff has sued defendant C. Green - a correctional officer at California State Prison, Sacramento. He has failed to state a viable constitutional claim.
Plaintiff alleges that, on September 23, 2021, he was showing Green that the front right wheel on his walker was breaking. ECF No. 15 at 2. Either plaintiff or Green - it is unclear who - grabbed another walker. Id. Plaintiff told Green that “it's going to have to be documented.” Id. at 2-3. Green “got mad and snatched plaintiff['s] walker from his hand for no reason and caused swelling to plaintiff['s] left thumb.” Id. at 3. Plaintiff then went back to his housing unit with his walker. Id. Plaintiff felt pain and numbness in his thumb following the encounter. Id. at 3, 4. Plaintiff alleges that Green applied excessive force in violation of the Eighth Amendment because he “knew or should have known that his conduct, attitude, and actions created an unreasonable risk of serious harm to plaintiff.” Id. He further alleges that Green committed the state law tort of assault and battery. Id. at 4.
These allegations, as currently articulated, simply do not rise to the level of severity necessary to implicate a violation of the Eighth Amendment. In Hudson v. McMillian, the Supreme Court cautioned that not “every malevolent touch by a prison guard gives rise to a federal cause of action.” 503 U.S. 1, 9 (1992). “The Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10. Here, nothing in the complaint indicates that Green's alleged use of force in snatching the walker was more than de minimis. Moreover, an excessive force claim requires a showing that the officer applied force maliciously and sadistically to cause harm. Id. at 6.
Although plaintiff claims that Green knew or should have known he was creating a risk of harm to plaintiff, there are no specific allegations showing that Green ever intended any physical harm to plaintiff. While the extent of plaintiff's alleged injury is not necessarily dispositive of the issue, its limited nature weighs against the viability of this claim. See, e.g., Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“An inmate who complains of a ‘push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim.”).
Further, before proceeding on a claim arising under California law a litigant must comply with the terms of the California Tort Claims Act, and then plead compliance. See Cal. Gov't Code §§ 905, 911.2, 945, 950.2.; Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). When a plaintiff asserts a claim subject to the Act, he must affirmatively allege compliance with the claim presentation procedure, or circumstances excusing such compliance, in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007). Plaintiffs complaint is devoid of such allegations. For this reason, the assault and battery claim is also dismissed with leave to amend.
Leave to Amend
Plaintiff will be given an opportunity to amend his complaint. He is cautioned that any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also include any allegations based on state law that are so closely related to his federal allegations that “they form the same case or controversy.” See 28 U.S.C. § 1367(a).
The amended complaint must also contain a caption including the names of all defendants. Fed.R.Civ.P. 10(a).
Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims against more than one defendant. Id.
Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.'”) (quotingLoux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).
Any amended complaint should be as concise as possible in fulfilling the above requirements. Fed.R.Civ.P. 8(a). Plaintiff should avoid the inclusion of procedural or factual background which has no bearing on his legal claims. He should also take pains to ensure that his amended complaint is as legible as possible. This refers not only to penmanship, but also spacing and organization. Plaintiff should carefully consider whether each of the defendants he names actually had involvement in the constitutional violations he alleges. A “scattershot” approach in which plaintiff names dozens of defendants will not be looked upon favorably by the court.
Conclusion
Accordingly, it is ORDERED that:
1. Plaintiffs request for the appointment of counsel (ECF No. 16) is denied without prejudice;
2. Plaintiffs amended complaint (ECF No. 15) is dismissed with leave to amend within 30 days of service of this order; and
3. Failure to comply with any part of this this order may result in dismissal of this action.