United States District Court, N.D. California
October 6, 2005.
HOMER E. HAWKINS, Plaintiff,
MARIN SHERIFF; et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL WITH LEAVE TO AMEND
Homer E. Hawkins, currently in custody at the San Mateo County
Jail, filed this pro se civil rights action under
42 U.S.C. § 1983 in 2003, concerning events in 2002 and 2003 while he was in
custody at the Marin County Jail. After determining that Hawkins
had three prior qualifying dismissals and could not proceed in
forma pauperis, the court dismissed the action without prejudice
to Hawkins filing an action for which he paid the full filing fee
at the time he filed his complaint. Hawkins appealed. The Ninth
Circuit reversed the dismissal because the court had counted as a
prior dismissal the dismissal of a habeas action filed by Hawkins
which was not allowed under Andrews v. King, 398 F.3d 1113 (9th
Cir. 2005), a case decided more than a year after this court's
dismissal order was issued. The case file was returned from the
Ninth Circuit last week, and it is now time to resume the case
where it stopped, i.e., at the initial review stage. The
complaint is now before the court for initial review under
28 U.S.C. § 1915A.
BACKGROUND Hawkins' complaint in this action was very poorly written. He
listed the primary defendant as "don't know" and the additional
defendants as "none," although on the cover page he listed the
defendants as the Marin Sheriff, chief of police, jail commander,
and "the officer's employees". See Complaint, pp. 1, 3. Hawkins
alleged in his complaint that a county officer was "doing
thing's" and a "count officer threaten to do more because I have
been fileing `grievances.'" Complaint, p. 3 (spelling and
grammatical errors in source). Hawkins further alleged that he
had filed numerous grievances about his legal materials being
opened, thrown around his cell and disappearing. Hawkins further
alleged that he had been threatened that the problems would
continue if he did not stop writing grievances. He further
alleged that his mail (that might have been legal mail) was
returned because he was indigent. He requested this court to
order officials at the jail to stop violating his rights.
A few weeks after he filed his complaint, Hawkins filed a
document entitled "Affidavit in support of motion to proceed in
forma pauperis and for appointment of counsel/attorney: to amend
(civil action/lawsuit): an order compelling discovery: request
for production of documents." (Docket # 4.) The "affidavit"
appears to be, among other things, an attempt to add new
defendants to the action and add claims for violation of privacy
rights and the attorney/client privilege based on monitoring of
conversations between attorneys and clients, although it is not
pled that Hawkins ever was subjected to any such monitoring.
A. Review Of Complaint
A federal court must engage in a preliminary screening of 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 which 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. at 1915A(b)(1),(2). Pro se pleadings must be
liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the Constitution
or laws of the United States was violated, and (2) that the
violation was committed by a person acting under the color of
state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
The complaint is deficient in several respects and the
"affidavit" did not cure the many deficiencies in the complaint.
Hawkins must file an amended complaint that takes into
consideration the following information.
First, the retaliation claim appears deficient. An inmate suing
his jailers under § 1983 for retaliation must allege that he was
retaliated against for exercising his constitutional rights and
that the retaliatory action did not advance legitimate
penological goals, such as preserving institutional order and
discipline. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.
1995); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). He
also must allege that the defendants' actions caused him some
injury. Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)
(holding that a retaliation claim is not actionable unless there
is an allegation of harm; the alleged harm may be a chilling
effect on the exercise of First Amendment rights). The complaint
appears to allege that retaliation was threatened but does not
allege that any retaliation actually occurred. In some cases, the
would-be retaliatory action is so insignificant that it does not
deter the exercise of First Amendment rights. Minor acts such as
"bad mouthing" and verbal threats sometimes cannot reasonably be
expected to deter protected speech and therefore do not violate a
plaintiff's First Amendment rights. See Coszalter v. City of
Salem, 320 F. 3d 968, 975-76 (9th Cir. 2003). Hawkins must amend
the claim to allege that he was subjected to retaliation if he
wishes to pursue the claim. If Hawkins claims that the mere
threat to retaliate was enough retaliation to chill his First
Amendment rights, he must so allege to attempt to show an injury
Second, Hawkins has not identified who allegedly threatened to
retaliate against him if he continued to file grievances. In his
amended complaint, Hawkins must identify the person who allegedly
threatened him. If he does not know the name of the person, he
may describe that person by using a Doe defendant designation to
refer to that defendant. (If he alleges that multiple unknown people violated his constitutional rights, each unknown
person must be identified as a separate John Doe, e.g., John Doe
#1, John Doe #2, etc. so that eventually each John Doe defendant
can be replaced by a separate person when his or her true name
becomes known.) Although the use of Doe defendants is acceptable
to withstand dismissal of the complaint at the initial review
stage, using Doe defendants creates its own problem: those
persons cannot be served with process in this action until they
are identified by their real names. Hawkins must promptly take
steps to discover the names of the unnamed defendants and provide
that information to the court in an amendment to his pleading no
later than January 6, 2006; any unnamed or Doe defendants whose
true name and correct address have not been provided by that
deadline will be dismissed from this action. The burden remains
on the plaintiff; the court will not undertake to investigate the
names and identities of unnamed defendants and will not appoint
an investigator to aid the plaintiff.
Third, the requirement that Hawkins identify the allegedly
responsible parties is not limited to the retaliation claim. For
every claim, Hawkins must identify the defendants who he proposes
to hold liable on that claim and must allege what each person did
or failed to do to cause a violation of one or more of his
constitutional rights. A plaintiff cannot lump together a number
of unidentifiable persons as a group defendant. Allegations that
unidentified members of a jail's staff acted inappropriately are
insufficient to hold any particular person liable. See Leer v.
Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be
imposed on individual defendant under § 1983 only if plaintiff
can show that defendant proximately caused deprivation of
federally protected right).
Fourth, it appears that Hawkins may be attempting to claim a
violation of his constitutional right of access to the courts.
See Lewis v. Casey, 518 U.S. 343, 350-51 (1996). To establish
a claim for any violation of the right of access to the courts,
the inmate must show that there was an inadequacy in the jail's
legal access program that caused him an actual injury. See
id. at 351. To prove an actual injury, the inmate must show
that the inadequacy hindered him in presenting a non-frivolous
claim concerning his conviction or conditions of confinement.
See id. at 355. Examples of impermissible hindrances include:
an inmate whose complaint was dismissed for failure to satisfy some technical requirement which, because of
deficiencies in the jail's legal assistance facilities, he could
not have known; and an inmate who had "suffered arguably
actionable harm" that he wished to bring to the attention of the
court, but was so stymied by the inadequacies of the library that
he was unable even to file a complaint. See id. at 351. Mere
delay in filing papers would not be enough, for example, if they
were nevertheless timely filed or accepted and considered by the
court. See Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.
1982). Hawkins has not identified any actual injury as he must to
state a claim for a violation of his constitutional right of
access to the court.
Fifth, Hawkins' allegation that there was an interference with
attorney-client communications suggests that the claim may relate
a to criminal action pending against him. Hawkins is cautioned
that this court will not interfere with a state criminal case
pending against him. Under principles of comity and federalism, a
federal court should not interfere with ongoing state criminal
proceedings by granting injunctive or declaratory relief absent
extraordinary circumstances. See Younger v. Harris,
401 U.S. 37, 43-54 (1971); Samuels v. Mackell, 401 U.S. 66, 68-74
(1971). There are no extraordinary circumstances alleged here.
Furthermore, to the extent any claim would call into question any
conviction that he suffered (e.g., a claim that he was denied a
fair trial because he could not communicate with his attorney),
the claim likely could not proceed in a civil rights action under
the Heck rule. The case of Heck v. Humphrey, 512 U.S. 477
(1994), held that a plaintiff cannot bring a civil rights action
for damages for a wrongful conviction unless that conviction
already has been determined to be wrongful. See id. at
486-87. A conviction may be determined to be wrongful by, for
example, being reversed on appeal or being set aside when a state
or federal court issues a writ of habeas corpus. See id. The
Heck rule also prevents a person from bringing an action that
even if it does not directly challenge the conviction would
imply that the conviction was invalid. The practical importance
of this rule is that plaintiffs cannot attack their convictions
in a civil rights action for damages; the conviction must have
been successfully attacked before the civil rights action for
damages is filed. Hawkins' complaint is so poorly pled that the
court cannot determine whether Heck actually bars any of his
claims, but he should bear the Heck rule in mind as he prepares
his amended complaint. Sixth, Hawkins is no longer at Marin County Jail and now is at
San Mateo County Jail. His requests for injunctive relief against
the jailers in Marin therefore appear to be moot because he has
been moved to another jail and there is no reasonable expectation
nor demonstrated probability that he will again be subjected to
the jail conditions as to which he seeks injunctive relief. See
Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995); Darring
v. Kincheloe, 783 F.2d 874, 876-77 (9th Cir. 1986).
Seventh, Hawkins listed as a defendant a "chief of police," but
did not identify the municipality in which the person was the
police chief. If he contends the police chief of some city or
other municipality violated his rights, he has to identify the
city or municipality for which the person works. Service of
process could not be done as to someone identified only as a
"chief of police."
Eighth, pleading municipal liability must be done with great
care and with attention to these rules. A municipality can be a
"person" subject to liability under § 1983 when its official
policy or customs causes a constitutional tort, but a
municipality has no vicarious liability for the unconstitutional
acts of its employees under the theory of respondeat superior.
See Monell v. Dep't of Social Servs., 436 U.S. 658, 690
(1978); see Plumeau v. School Dist. #40 County of Yamhill,
130 F.3d 432, 438 (9th Cir. 1997) (to establish municipal
liability based on an official policy or custom, plaintiff must
show: (1) that he possessed a constitutional right of which he
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). A municipality also
may be liable for constitutional violations from its failure to
supervise, monitor or train, but only where that failure amounts
to deliberate indifference to the rights of persons with whom the
municipality's employees come into contact. See Canton v.
Harris, 489 U.S. 378, 388 (1989). B. The "Affidavit"
As noted earlier, Hawkins filed a document called an
"affidavit." The caption of it suggests he wants discovery and
appointment of counsel. Neither request will be granted.
The court will not order any particular discovery. The court
generally is not involved in the discovery process and only
becomes involved when there is a dispute between the parties
about discovery responses. Discovery requests and responses
normally are exchanged between the parties without any copy sent
to the court, and the parties may agree to extensions of
deadlines without need for a court order. See Fed.R.Civ.P.
5(d) (listing discovery requests and responses that "must not" be
filed with the court until they are used in the proceeding or the
court orders otherwise). Only when the parties have a discovery
dispute that they cannot resolve among themselves should the
parties even consider asking the court to intervene in the
discovery process. The court does not have enough time or
resources to oversee all discovery, and therefore requires that
the parties present to it only their very specific disagreements.
And to promote the goal of addressing only very specific
disagreements (rather than becoming an overseer of all
discovery), the court requires that the parties meet and confer
to try to resolve their disagreements before seeking court
intervention. See Fed.R.Civ.P. 37(a)(2)(B); N.D. Cal. Local
Rule 37. Hawkins' request that the court order defendants to
produce all its files on plaintiff is premature. He must serve a
proper discovery request, receive no answer or an unsatisfactory
answer to the request, and meet and confer with defense counsel
before filing any motion to compel. Because one of the parties is
an inmate, the court does not require in-person meetings; rather,
the inmate and defense counsel can meet and confer by telephone
or exchange of letters, but must engage in a good faith effort to
meet and confer before seeking court intervention in any
The "affidavit" also indicates that Hawkins wants the court to
appoint counsel to represent Hawkins in this action. A district
court has the discretion under 28 U.S.C. § 1915(e)(1) to
designate counsel to represent an indigent civil litigant in
exceptional circumstances. See Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of
both the likelihood of success on the merits and the ability of
the plaintiff to articulate his claims pro se in light of the
complexity of the legal issues involved. See id. Neither of
these factors is dispositive and both must be viewed together before deciding on a
request for counsel under section 1915(e)(1). Here, exceptional
circumstances requiring the appointment of counsel are not
evident. Based on the record before it, the court is not able to
determine that there is a likelihood of success on the merits and
the complaint does not raise difficult legal claims. The request
for appointment of counsel is denied.
The complaint is DISMISSED with leave to amend. The amended
complaint must be filed no later than November 11, 2005. The
amended complaint must include the caption and civil case number
used in this order and the words AMENDED COMPLAINT on the first
page. Plaintiff is cautioned that his amended complaint must be a
complete statement of his claims and will supersede existing
pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814
(9th Cir. 1981) ("a plaintiff waives all causes of action alleged
in the original complaint which are not alleged in the amended
complaint.") Failure to file the amended complaint by the
deadline will result in the dismissal of the action.
Hawkins is responsible for prosecuting this case. He must
promptly 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).
It is not sufficient for Hawkins to file a notice of change of
address in another court: he must file a notice of change of
address in this court and must file one in every pending case
every time he is moved to a new institution.
Hawkins is cautioned that he must include the case name and
case number for this case on any document he submits to this
court for consideration in this case.
IT IS SO ORDERED.
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