United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He alleges that the
named defendants violated his Eight Amendment rights by
deliberate indifference to his medical needs. ECF No. 15.
Pending before the court are plaintiff’s motion for
appointment of counsel, ECF No. 43, and defendant Nathanial
K. Elam’s motion to dismiss, ECF No. 32. For the reasons
stated below, plaintiff’s motion to appoint counsel is
denied and it is recommended that defendant Elam’s
motion to dismiss be granted.
alleges that he suffered various injuries after being
attacked by one of his cellmates on May 21, 2010. ECF No. 15
at 5-6. The next day, he complained to medical staff that the
pain in his jaw and face made chewing food difficult.
Id. at 8. He told an unidentified nurse at the unit
clinic that he believed his jaw and at least one other facial
bone were broken. Id. Between June 2, 2010 and
August 31, 2010, plaintiff alleges that medical staff
inappropriately delayed prescribing x-rays and a soft meal
diet. Id. at 9-13. He also claims that he was denied
adequate pain medication for a shoulder injury that predated
the May assault. Id. at 12.
August 31, 2010, plaintiff received a first level response to
an appeal he had filed regarding the purported inadequacies
in his medical care. Id. at 13. Unsatisfied, he
appealed to level two on September 19, 2010 and, on October
18, 2010, received a denial from defendant Elam which stated
that his care was adequate and that money damages - which
plaintiff’s appeal sought to recover - were beyond the
scope of the appeals process. Id. at 14, 85-86. Now,
plaintiff alleges that defendant Elam violated his rights by
failing to provide him with a soft meal diet, failing to
remedy the misconduct of his subordinates, and failing to
“provide evidence upon request” in his appeal
response. Id. at 16, 22-23.
Plaintiff’s Motion to Appoint Counsel
argues that his lack of legal training and formal education
hamper his ability to successfully prosecute this case. ECF
No. 43 at 2-3. Accordingly, he requests that the court
appoint counsel to assist him in doing so. Id.
District courts lack authority to require counsel to
represent indigent prisoners in section 1983 cases, however.
Mallard v. United States Dist. Court, 490 U.S. 296,
298 (1989). In exceptional circumstances, the court may
request an attorney to voluntarily to 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 and plaintiff’s
motion is denied.
Defendant Elam’s Motion to Dismiss
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 554-55, 562-63, 570 (2007) (stating that the
12(b)(6) standard that dismissal is warranted if plaintiff
can prove no set of facts in support of his claims that would
entitle him to relief “has been questioned, criticized,
and explained away long enough, ” and that having
“earned its retirement, ” it “is best
forgotten as an incomplete, negative gloss on an accepted
pleading standard”). Thus, the grounds must amount to
“more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action. Id. at 555. Instead, the “[f]actual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (internal citation omitted).
Dismissal may be based either on the lack of cognizable legal
theories or the lack of pleading sufficient facts to support
cognizable legal theories. Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
complaint’s factual allegations are accepted as true.
Church of Scientology of Cal. v. Flynn, 744 F.2d
694, 696 (9th Cir. 1984). The court construes the pleading in
the light most favorable to plaintiff and resolves all doubts
in plaintiff’s favor. Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General
allegations are presumed to include specific facts necessary
to support the claim. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
court may disregard allegations contradicted by the
complaint’s attached exhibits. Durning v. First
Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987);
Steckman v. Hart Brewing, Inc., 143 F.3d 1293,
1295-96 (9th Cir.1998). Furthermore, the court is not
required to accept as true allegations contradicted by
judicially noticed facts. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing
Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th
Cir. 1987)). The court may consider matters of public record,
including pleadings, orders, and other papers filed with the
court. Mack v. South Bay Beer Distributors, 798 F.2d
1279, 1282 (9th Cir. 1986) (abrogated on other grounds by
Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104 (1991)). “[T]he 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).
Neither need the court accept unreasonable inferences, or
unwarranted deductions of fact. Sprewell, 266 F.3d
general, pro se pleadings are held to a less stringent
standard than those drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 520 (1972). The court has an
obligation to construe such pleadings liberally. Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
banc). However, the court’s liberal interpretation of a
pro se complaint may not supply essential elements of the
claim that were not pled. Ivey v. Bd. of Regents of Univ.
of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see
also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).