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Sherman v. Small

July 27, 2010

JOSEPH HOWARD SHERMAN, CDCR #H-41665, PLAINTIFF,
v.
LARRY SMALL, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 9]; AND (2) DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)

I. PROCEDURAL HISTORY

On February 4, 2010, Plaintiff, a state inmate currently incarcerated at Calipatria State Prison located in Corcoran, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") and simultaneously dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). See March 19, 2010 Order at 8-9. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order. Id. at 9. Plaintiff filed an extension of time to file his Amended Complaint which was granted by the Court. See May 12, 2010 Order at 3. On May 13, 2010, Plaintiff filed his First Amended Complaint ("FAC") [Doc. No. 6].

However, once again, the Court found that Plaintiff failed to state a claim upon which relief could be granted. See June 4, 2010 Order at 6-7. On July 12, 2010, Plaintiff filed his Second Amended Complaint ("SAC"), along with a Motion to Appoint Counsel.

II. MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 9]

Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances 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.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

The Court deniesPlaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

III. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As the Court stated in its previous Orders, the Prison Litigation Reform Act's ("PLRA") amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

A. 42 U.S.C. § 1983

To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

B. Retaliation Claims

In his Second Amended Complaint, Plaintiff claims that he filed administrative grievances against Defendants Aguilar, Delgado and Jimenez for their "illegal actions." SAC at 8. On June 19, 2008, Plaintiff claims that "per the orders of newly appointed Acting Warden Defendant Larry Small," Plaintiff's cell was searched by Defendants Sabala and Palomera. Id. In order to prevail on a claim of retaliation, Plaintiff must be able to prove the following five factors: "(1) An assertion that a state actor took some adverse action against [Plaintiff]; (2) because of (3) [Plaintiff's] protected conduct, and that such action (4) chilled [Plaintiff's] exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." See Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam)).

Here, Plaintiff has alleged no facts to suggest that the actions of Defendants did not reasonably advance a legitimate correctional goal nor does Plaintiff allege any facts to show that his First Amendment rights were "chilled." Plaintiff does not allege any facts that would indicate that the actions of Small, Sabala or Palomera were in any way related to the filing of his grievances against Aguilar, Delgado and Jimenez. Thus, Plaintiff's First ...


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