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Walker v. Schwarzenegger

June 29, 2010



Michael J. Walker, an inmate confined at Pleasant Valley State Prison, and proceeding pro se, commenced this action with a document labeled as "Common Law Declaration in Chief Ad damnum and Demand for Jury Trial, Common Law Writ of Mandamus, and Declaratory, Injunctive Reliefs, By Article III § 2, Common law and Amendments 1, 2, 4, 5, 6, 7, 8, and 9." Dckt. No. 1. In addition, petitioner filed an application to proceed in forma pauperis and a request for the appointment of counsel. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. Request to Proceed In Forma Pauperis

Petitioner has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2, 9. Petitioner's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Request for Appointment of Counsel

Petitioner has requested that the court appoint counsel. In exceptional circumstances, the court may request counsel to voluntarily represent a party. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no exceptional circumstances in this case. Petitioner also indicates his desire to have a fellow inmate be appointed as his "common law co-counsel." Dckt. No. 3. Unless this inmate is an attorney, he has no authority to represent petitioner in court. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997); Church of the New Testament v. U.S., 783 F.2d 771, 773-74 (9th Cir. 1986). While petitioner may submit papers prepared by someone other than himself, he must sign those papers or otherwise acknowledge that he wants them filed on his behalf. See Fed. R. Civ. P. 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented.").

III. Screening Order

The nature of this action is not clear from petitioner's initial filing. See Dckt. No. 1.

To the extent petitioner seeks a writ of mandamus, such request should be denied. Petitioner requests that the court issue orders against various state and county officials. However, in a mandamus action, the court can only issue orders against employees, officers or agencies of the United States. 28 U.S.C. § 1361. Given petitioner's request for a jury, reference to "defendants," and allegations, albeit, vague and conclusory, of various constitutional violations, petitioner may be seeking to challenge the conditions of his confinement under 42 U.S.C. § 1983. Construing petitioner's filing as a complaint alleging civil rights violations, the court will screen it pursuant to 28 U.S.C. § 1915A. "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

Petitioner's filing, construed as a complaint, violates Rule 8(a) of the Federal Rules of Civil Procedure. The complaint is so prolix and obscure that the court cannot reasonably discharge its responsibility under § 1915A until petitioner complies with the pleading requirements set forth in Rule 8. This rule requires the pleader to set forth his averments in a simple, concise, and direct manner. The degree of simplicity and conciseness required depends on the subject matter of the litigation, the nature of the claims or defenses presented and the number of parties involved. Wright & Miller, Federal Practice & Procedure, vol. 5 § 1281 & n. 12 (1990) (explaining that an antitrust or copyright pleading due to its complexity, must be pleaded with more detail than a simple negligence complaint). Before undertaking to determine whether the complaint may have merit, the court may insist upon compliance with its rules. See McNeil v. United ...

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