United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983, seeks leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915. He has
also requested appointment of counsel, submitted a
"motion for injunctive relief, " and what he styles
as a "complaint: supplement."
Request to Proceed In Forma Pauperis
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).
Request for Appointment of Counsel
requests that the court appoint counsel. District courts lack
authority to require counsel to represent indigent prisoners
in section 1983 cases. Mallard v. United States Dist.
Court, 490 U.S. 296, 298 (1989). In exceptional
circumstances, the court may request an attorney to
voluntarily represent such a plaintiff. See 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).
When determining whether "exceptional
circumstances" exist, the court must consider the
likelihood of success on the merits as well as the ability of
the plaintiff to articulate his claims pro se in light of the
complexity of the legal issues involved. Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having
considered those factors, the court finds there are no
exceptional circumstances in this case.
Screening Requirement and Standards
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint "is frivolous, malicious, or fails to
state a claim upon which relief may be granted, " or
"seeks monetary relief from a defendant who is immune
from such relief." Id. § 1915A(b).
se plaintiff, like other litigants, must satisfy the pleading
requirements of Rule 8(a) of the Federal Rules of Civil
Procedure. Rule 8(a)(2) "requires a complaint to include
a short and plain statement of the claim showing that the
pleader is entitled to relief, in order to give the defendant
fair notice of what the claim is and the grounds upon which
it rests." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 554, 562-563 (2007) (citing Conley v. Gibson,
355 U.S. 41 (1957)). While the complaint must comply with the
"short and plaint statement" requirements of Rule
8, its allegations must also include the specificity required
by Twombly and Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
avoid dismissal for failure to state a claim a complaint must
contain more than "naked assertions, " "labels
and conclusions" or "a formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555-557. In other words, "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements do not suffice." Iqbal,
556 U.S. at 678.
a claim upon which the court can grant relief must have
facial plausibility. 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." Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S. 89
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974).
commenced this action by filing a motion for injunctive
relief. ECF No. 1. He subsequently filed a document entitled
"Complaint: Supplement to the above case no. 42 U.S.C.
§ 1983." Neither document, by itself, is sufficient
to constitute a complaint setting forth a cognizable claim
for relief. Rather, it appears from these filings that
plaintiff is attempting to file a complaint in a piecemeal
fashion through separate filings which must then be read
together as a single complaint. This is not the proper
procedure for filing or amending a complaint. Therefore,
treating plaintiff's filings--which he collective intends
to serve as his complaint--as the complaint, they are
collectively dismissed. Plaintiff is granted leave to amend
to submit an amended complaint in accordance with the
requirements set forth in this order.
amended complaint shall clearly set forth the claims and
allegations against each defendant, and must identify as a
defendant only persons who personally participated in a
substantial way in depriving plaintiff of a federal
constitutional right. Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978) (a person subjects another to the
deprivation of a constitutional right if he does an act,