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Spand v. Martel

July 15, 2010

JOE SPAND, PLAINTIFF,
v.
J. MARTEL, ET AL., DEFENDANTS.



ORDER

Joe Spand, a former inmate at Mule Creek State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis and a motion for appointment of counsel. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. L. R., Appx. A, at (k)(4).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff'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

District courts lack authority to require counsel to represent indigent litigants in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request counsel voluntarily to represent such a plaintiff. 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.

III. Screening Order

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "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). The court finds that the complaint fails to state a cognizable claim against defendants and should therefore be dismissed for the following reasons.

In this action, plaintiff alleges that defendant R. Dion fabricated a Rules Violation Report ("RVR") charging plaintiff with refusing a direct order (to accept a cellmate). Compl. at 25.*fn1 In a hearing presided over by defendant J.K. Rogel and reviewed by defendant L. Olivas (see id. at 33 and 35), plaintiff was found guilty of the rules violation and assessed a loss of 30 days behavioral credit, among other punishments. Id. at 36. Plaintiff seeks "$50,000 for pain and suffering." Id. at 3.

The U.S. Supreme Court has held that a prisoner's claim for money damages does not present cognizable claim under 42 U.S.C. § 1983 if a judgment in the prisoner's favor would necessarily imply the invalidity of a deprivation of good-time credits, regardless of whether the plaintiff actually seeks restoration of the lost credits. Edwards v. Balisok, 520 U.S. 641, 644, 647-48 (1997). Such a claim must instead be brought as a petition for writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003). Plaintiff's allegations against defendants are all grounded on his assertion that defendant Dion fabricated the RVR and that discipline based on the fabricated RVR was unlawful. A judgment in plaintiff's favor on these allegations would necessarily imply the invalidity of the deprivation of good-time credits imposed on plaintiff based on the allegedly fabricated RVR. Accordingly, these allegations do not present claims cognizable under 42 U.S.C. § 1983 unless and until plaintiff can prove that the disciplinary finding has been reversed or expunged (such as by the issuance of a writ of habeas corpus). Ramirez, 334 F.3d at 855-56 (quoting Heck, 512 U.S. at 486-87, 489). Plaintiff has not demonstrated that the challenged disciplinary action has been invalidated. Thus, to proceed plaintiff must file an amended complaint demonstrating the invalidation of the discipline imposed based on the allegedly fabricated RVR.

Any amended complaint must adhere to the following requirements: It must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded.

It must show that the federal court has jurisdiction and that plaintiff's action is brought in the right place, that plaintiff is entitled to relief if plaintiff's allegations are true, and must contain a request for particular relief. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson, 588 F.2d at 743 (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).

It must contain a caption including the name of the court and the names of all parties. Fed. R. Civ. P. 10(a).

Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). Unrelated claims against different defendants must be pursued in multiple lawsuits. "The controlling principle appears in Fed. R. Civ. P. 18(a): 'A party asserting a claim . . . may join, [] as independent or as alternate claims, as many claims . . . as the party has against an opposing party.' Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless both commonality and same transaction requirements are satisfied). Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an amended complaint. George, 507 F.3d at 607 (no "buckshot" complaints).

The allegations must be short and plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). A long, rambling pleading, including many defendants with unexplained, tenuous or implausible connection to the alleged constitutional injury or joining a series of unrelated claims against many defendants very likely will result in delaying the review required by 28 U.S.C. ยง 1915 ...


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