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Kirk v. Felker

May 17, 2010

JOHN MICHAEL KIRK, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge Sitting By Designation

ORDER

Plaintiff, prisoner at High Desert State Prison, has filed a 42 U.S.C. § 1983 claim alleging an Eighth Amendment violation by four personnel at the prison, Warden Felker, Director of Corrections N. Grannis, Dr. David, and Dr. James. This order disposes of outstanding motions. Plaintiff's Motions

Plaintiff has three outstanding motions: a motion seeking appointment of counsel, a request for reconsideration of this Court's Order of August 21, 2009 dismissing defendant David, and a motion for copies.

On September 17, 2009, plaintiff filed a motion seeking appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). 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 (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. At this early stage in the proceedings, Kirk has not provided sufficient evidence or legal argument to convince the court that he is likely to succeed on the merits. As discussed below, Kirk fails to state a claim upon which relief can be granted against two of the three remaining defendants. Further, Based on a review of the record in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.

For the foregoing reasons, plaintiff's motion for the appointment of counsel is HEREBY DENIED, without prejudice.

On August 21, 2009 this Court found that in light of the information provided by the United States Marshals Service that Defendant David is no longer employed at the facility that houses Kirk and has moved to Iraq. Plaintiff's September 17, 2009 motion for reconsideration argues Dr. James and Dr. David are mostly to blame for his pain and suffering, and should be held accountable regardless of location. Since Defendant David is no longer employed at the facility, and no longer amenable to service by the Marshal due to Defendant's residence in Iraq, this court does not have jurisdiction over Defendant David.

For the foregoing reasons, Plaintiff's motion for reconsideration of the August 21, 2009 Order is DENIED, without prejudice.

On September 17, 2009, Plaintiff filed a motion requesting a conformed copy of the enclosed file because of his lack of access to a copy machine. The motion is GRANTED, and the clerk ordered to send a conformed copy of the file to Plaintiff.

Defendant Felker's Motion for Judgment on the Pleadings

On September 1, 2009, Defendant Felker filed a notice of motion and motion for judgment on the pleadings pursuant to F.R.C.P. 12(c), on the grounds that there is no respondeat superior liability under 42 U.S.C. § 1983.

Plaintiff alleges liability against defendant Felker as warden. Plaintiff appears to be alleging supervisory liability. Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). A supervisor may be liable under § 1983 upon a showing of personal involvement in the constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation omitted). To state a claim for relief under § 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim that supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.' " Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Plaintiff fails to allege any facts that indicate defendant Felker personally participated in the alleged deprivation of a constitutional right, knew of the violations and failed to act to prevent them, or implemented a policy so deficient that the policy ...


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