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Williams v. Jackson

United States District Court, E.D. California

September 5, 2017




         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that defendant Jackson violated his First and Eighth Amendment rights by retaliating against him for filing prison grievances and by deliberate indifference to his serious medical needs. ECF No. 1 at 3-5, 24. Defendant has now filed a motion to dismiss pursuant to 12(b)(6) arguing plaintiff failed to exhaust his administrative remedies prior to filing this action. ECF No. 29. Plaintiff filed an opposition (ECF No. 31) and defendants have submitted a reply (ECF No. 35). After review of the pleadings it is recommended that defendant's motion be denied. Plaintiff's motion to compel (ECF No. 32) and motion to appoint counsel (ECF No. 33) are denied.

         I. Motion to Compel

         Plaintiff seeks an order compelling production of his medical, mental health, and health care appeals records. ECF No. 32. That motion is denied as premature. The court will issue a scheduling order after a response to the complaint is filed. That order will set a schedule which will include the timeframe for conducting discovery. Then, plaintiff may seek production of these documents via the discovery process.

         II. Motion to Appoint Counsel

         Plaintiff's motion to appoint counsel (ECF No. 33) is also 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. Motion to Dismiss

         Defendant argues that the exhibits attached to plaintiff's complaint indicate that he did not fully exhaust his administrative remedies before filing this action. Specifically, she notes that one attached document indicates that, on May 13, 2016, plaintiff's appeal was rejected because he had exceeded the maximum number of non-emergency appeals allowed in a fourteen day period. ECF No. 1 at 25. Then, on June 9, 2016, his appeal was rejected for a second time after prison officials determined that the administrative remedies being requested were no longer within their jurisdiction. Id. at 23. This jurisdictional rejection was premised on the fact plaintiff was no longer housed at Department of State Hospitals- Stockton (DSH-Stockton). Id.

         A. Legal Standards

         1. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         A complaint may be dismissed under that rule for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement, ” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.

         For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice, and construes all well-pleaded material factual allegations in the light most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

         Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

         Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 ...

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