United States District Court, E.D. California
ORDER GRANTING IFP AND DISMISSING COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO 28 U.S.C. § 1915A
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He has filed an
application for leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915, a request for the appointment of
counsel, a request for service of the complaint by the U.S.
Marshal, and a request for the court to accept his complaint
even if it exceeds required page-limits.
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 is denied. 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 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.
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).
court has reviewed plaintiff's complaint pursuant to
§ 1915A and finds it must be dismissed with leave to
amend. First, the complaint improperly joins
unrelated claims and defendants in a single lawsuit.
Plaintiff names ten individuals as defendants and challenges
numerous unrelated incidents spanning a more than a two-year
period. The complaint includes the following allegations: (1)
sometime between April 2014 and April 2016, defendant
Horowitz denied plaintiff a vest, a cane, and access to
specialists, left staples in plaintiff's head for two
years, and interfered with plaintiff's prescribed
medication and treatment; (2) on July 4, 2014, days after
plaintiff had been seriously assaulted by another inmate,
defendant Horowitz was deliberately indifferent to
plaintiff's serious medical needs, including seizures,
aphasia, and a concussion; (3) defendant Santillan denied
plaintiff due process at a January 2, 2016 rules violation
hearing; (4) in December of 2015, defendant Hang failed to
properly assist plaintiff at his appeal hearing and later
retaliated against plaintiff for filing an administrative
appeal by failing to intervene on March 25, 2016 when
plaintiff was assaulted by another inmate; (5) between March
25 and March 29, 2016, defendants Banks and Thomas failed to
protect plaintiff from attack by another inmate; (6) on March
29, 2016 defendant Chamber forced plaintiff to share a yard
with his attacker, who attacked plaintiff again that day and
defendants Chamber and Thomas failed to protect plaintiff in
retaliation for plaintiff's filing of a lawsuit against
them; (7) defendant Chamber placed plaintiff in the security
housing unit when plaintiff refused to consent to sharing the
yard with his attacker; (8) defendant Lizarraga, Warden,
failed to properly train and advise his officers about
exchanging cellmates, causing plaintiff to be assaulted; (9)
on August 12, 2016, defendant Lizarraga improperly denied
plaintiff's administrative appeal as a duplicate; (10) on
August 12, 2016, defendant Lizarraga instructed defendant
Mesa to cancel two of plaintiff's administrative appeals;
(11) defendant Bradley conducted a nude search of plaintiff
and requested a urine sample to retaliate against plaintiff
for reporting a drug-dealer and alcohol-maker and for filing
a lawsuit; (12) defendant Hernandez denied plaintiff due
process in an unidentified proceeding, which resulted in a
punishment that caused plaintiff to become suicidal and to
lose a lawsuit; and (13) defendant Lizarraga retaliated
against plaintiff for filing a lawsuit and administrative
appeals by denying plaintiff due process in an unidentified
disciplinary hearing, placing him in segregation, and
transferring him to another prison.
not all of plaintiff's intended claims for relief are
clear, it is obvious that the above allegations may not be
properly joined together as claims in a single action, as
they involve discrete events that do not arise out the same
occurrence and involve a common question of law or
fact.See Fed. R. Civ. P. 20(a)(2).
Because the complaint plainly alleges unrelated ...