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
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.
Motion to Compel
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.
Motion to Appoint Counsel
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.
Motion to Dismiss
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
Motion to Dismiss Pursuant to Fed.R.Civ.P.
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.
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.
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
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 ...