United States District Court, S.D. California
ORDER 1) DENYING MOTION TO APPOINT COUNSEL (ECF No.
6) AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2) AND §
Janis L. Sammartino United States District Judge.
April 18, 2017, Plaintiff, David Earl Parmer, currently
housed at the San Diego Central Jail, filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because
Plaintiff's Motion to Proceed IFP complied with 28 U.S.C.
§ 1915(a)(2), the Court granted him leave to proceed
without full prepayment of the civil filing fees required by
28 U.S.C. § 1914(a), but dismissed his Complaint for
failing to state a claim pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). (ECF No. 3.)
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 has now
filed a First Amended Complaint (“FAC”), along
with a Motion to Appoint Counsel. (ECF Nos. 4, 6.)
Motion to Appoint Counsel
seeks appointment of counsel to assist him in this matter.
(ECF No. 6.) However, there is no constitutional right to
counsel in a civil case. Lassiter v. Dep't of Soc.
Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C.
§ 1915(e)(1), district courts have some limited
discretion to “request” that an attorney
represent an indigent civil litigant, Agyeman v. Corr.
Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), this
discretion is rarely exercised and only under
“exceptional circumstances.” Id.;
see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991). 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 ‘in
light of the complexity of the legal issues
involved.'” Agyeman, 390 F.3d at 1103
(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986)).
these factors to Plaintiff's case, the Court
DENIES his Motion to Appoint Counsel because
a liberal construction of his original pleadings shows he is
capable of articulating the factual basis for his claims. All
documents filed by pro se litigants are construed liberally,
and “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Moreover, Fed.R.Civ.P.
8(e) requires that “[p]leadings . . . be construed so
as to do justice.” Neither the interests of justice nor
any exceptional circumstances warrant the appointment of
counsel in this case at this time. LaMere v. Risley,
827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d
Sua Sponte Screening Pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Plaintiff is a prisoner and is proceeding IFP, his FAC
requires a pre-Answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint to “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[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. “Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009).
42 U.S.C. § 1983
42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To
state a claim under § 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 color of state law. West v. Atkins, 487
U.S. 42, 48 (1988).
Improper Defendants & ...