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Perkins v. Yates

January 11, 2010

RANDY E. PERKINS, PLAINTIFF,
v.
JAMES A. YATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT AS MOOT, AND DENYING MOTION FOR COUNSEL (Docs. 16 and 17)

ORDER DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE FOR LACK OF JURISDICTION, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT (Doc. 17)

Screening Order

I. Motion for Leave to File Supplemental Complaint

Plaintiff Randy E. Perkins, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on August 29, 2008. On February 6, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state any claims under section 1983. On May 12, 2009, after Plaintiff failed to comply with the order, this action was dismissed. Upon receipt of Plaintiff's motion for an extension of time on May 12, 2009, the Court vacated the dismissal order on May 14, 2009, and granted Plaintiff sixty days within which to file an amended complaint. On July 17, 2009, Plaintiff filed an amended complaint and a motion seeking leave to file a supplemental complaint.

Plaintiff was granted leave to amend and his amended complaint was timely filed. Plaintiff's motion for leave to file a supplemental complaint is denied. Fed. Civ. P. 15(d). Because leave to file a supplemental complaint generally contemplates the filing of a separate pleading setting forth newly accrued claims, Plaintiff's motion is denied as moot given that Plaintiff's amended complaint filed on July 17, 2009, incorporates all of his claims.

II. Motion for Counsel

In his amended complaint, Plaintiff seeks the appointment of counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotation marks and citations omitted).

In the present case, the Court does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases almost daily. Further, based on a review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims, and the Court finds, as set forth below, that Plaintiff's federal claims lack merit. Id. Accordingly, Plaintiff's motion for counsel, set forth in his amended complaint, is denied.

III. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of ...


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