United States District Court, N.D. California
ORDER OF SERVICE; ORDER DIRECTING DEFENDANTS TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK INTRODUCTION
WILLIAM H. ORRICK, District Judge.
Plaintiff Randy Robertson's first federal civil rights complaint was dismissed with leave to amend. He filed a first and then a second amended complaint, which is now the operative complaint in this action. The second amended complaint, which contains allegations of retaliation and unconstitutional conditions of confinement, is now before the Court for review pursuant to 28 U.S.C. § 1915A(a).
Having concluded that the second amended complaint (Docket No. 17) states cognizable claims, the Court directs defendants to file in response to the operative complaint a dispositive motion, or notice regarding such motion, on or before June 15, 2015, unless an extension is granted. The Court further directs that defendants are to adhere to the notice provisions detailed in Sections 2.a and 10 of the conclusion of this order.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
A "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 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. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff Robertson alleges that (1) in 2011, Dolly Matteuci, Executive Director of Napa State Hospital ("NSH"), transferred him from NSH to a prison (and opposed his transfer back to NSH in 2014) in retaliation for exercising his First Amendment right of access to the courts; and (2) in 2014, David Livingston, Sheriff of Contra Costa County, retaliated against him by housing him in unconstitutional conditions in the Contra Costa Jail.
Claim 1, when liberally construed, is cognizable under section 1983 and shall proceed. Claim 2 is DISMISSED without prejudice to Robertson filing it in a separate civil rights action. Because the claim involves different causes of action against different defendants, it must be brought in a separate action. A blank civil rights complaint form will be sent to Robertson.
MOTION FOR THE APPOINTMENT OF COUNSEL
Robertson moves for the appointment of counsel (Docket No. 20). The decision to request counsel to represent an indigent litigant under 28 U.S.C. § 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of "exceptional circumstances" requires an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). It is too early in the litigation of this matter to determine whether counsel should be appointed. When the record is more fully developed, the Court will decide on its own motion whether to appoint counsel. Accordingly, Robertson's motion is DENIED.
For the foregoing reasons, the Court ...