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Sekona v. Lizarraga

United States District Court, E.D. California

September 1, 2017

JOE A. LIZARRAGA, et al., Defendants.



         Plaintiff 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.

         I. Request to Proceed In Forma Pauperis

         Plaintiff's 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).

         II. Request for Appointment of Counsel

         Plaintiff 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.

         III. Screening Requirement and Standards

         Federal 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).

         A pro 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).

         To 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.

         Furthermore, 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).

         IV. Screening Order

         The court has reviewed plaintiff's complaint pursuant to § 1915A and finds it must be dismissed with leave to amend.[1] 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.

         While 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.[2]See Fed. R. Civ. P. 20(a)(2). Because the complaint plainly alleges unrelated ...

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