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Abushama v. U.S. Department of Homeland Security

August 13, 2010

ISSA SAMEER ABUSHAMA, #A055-193-517, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER: (1) DENYING MOTION TO APPOINT COUNSEL [Doc. No. 7]; and (2) SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

I. PROCEDURAL HISTORY

On February 26, 2010, Plaintiff Issa Sameer Abushama, an inmate currently incarcerated at Krome Service Processing Center in Miami, Florida, filed a civil rights action pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. On April 1, 2010, this Court granted Plaintiff's Motion to Proceed IFP but simultaneously sua sponte dismissed his First Amended Complaint for failing to state a claim, pursuant to 28 U.S.§ 1915(e)(2) & 1915A(b). See Apr. 1, 2010 Order at 6-7. The Court also noted that Plaintiff's action actually arises under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971) as Plaintiff was seeking to hold federal actors, rather than state actors, liable for the alleged constitutional violations. Id. at 4. Plaintiff filed his First Amended Complaint on July 20, 2010, along with a Motion for Appointment of Counsel [Doc. No. 7].

II. MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 7]

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)).

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

III. SUA SPONTE SCREENING per 28 U.S.C. § 1915(e)(2) and § 1915A

A. Standard

As stated in the Court's previous Order, the Prison Litigation Reform Act ("PLRA") 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) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks 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 (9th Cir. 2000) (§ 1915A).

Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]section 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

B. Respondeat Superior

In this matter, Plaintiff seeks to hold Eric Holder, the Attorney General for the United States, Janet Napolitano, the Secretary of the United States Department of Homeland Security and Fred Lawrence, Warden of CCA San Diego Correctional Facility liable for the alleged violation of his constitutional ...


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