United States District Court, E.D. California
1) DENYING MOTIONS TO EXTEND TIME AND TO APPOINT COUNSEL [ECF
NOS. 13, 15] 2) GRANTING MOTION TO EXPAND AMENDED COMPLAINT
[ECF NO. 17] 3) DISMISSING ALL IMPERIAL COUNTY DEFENDANTS AND
CLAIMS PURSUANT TO 28 U.S.C. § 1915(E)(2) AND §
1915A(B) AND 4) TRANSFERRING REMAINDER OF CIVIL ACTION TO
EASTERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. §
84(B) AND 28 U.S.C. § 1406(A)
John A. Houston United States District Judge
FERGUSON (“Plaintiff”), incarcerated at
California Correctional Institute (“CCI”) in
Tehachapi, California at the time he initiated suit in April
2017, but since transferred to the California Substance Abuse
Treatment Facility in Corcoran, see ECF No. 18, is
proceeding pro se and in forma pauperis (“IFP”)
in this civil rights action, filed pursuant to 42 U.S.C.
§ 1983. See ECF No. 1.
original Complaint, Plaintiff claimed almost 70 individual
California Department of Corrections and Rehabilitation
(“CDCR”) correctional and medical care officials
employed at CCI, Kern Valley State Prison
(“KVSP”), and Calipatria State Prison
(“CAL”), violated his right to be free of cruel
and unusual punishments beginning in January 2011, while he
was incarcerated at CAL, and after he decided to
“drop out of the prison gang (Mexican Mafia), ”
eventually “debriefed” at CCI between May 2013
and January 2015, was transferred to a “transitional
housing unit” at KVSP until July 2016, and later was
transferred back to the Segregated Housing Unit
(“SHU”) at CCI. See ECF No. 1 at 14-47.
Plaintiff claimed Defendants at all three prisons retaliated
and conspired in a coordinated effort against him by
poisoning and/or contaminating his food and water,
threatening, harassing him, and denying him medical care for
a host of ailments he claims were caused by his treatment
after he first “dropped out” at CAL in 2011.
Id. Plaintiff sought injunctive relief as well as
general and punitive damages, and demanded a jury trial.
Id. at 49-51.
July12, 2017, this Court granted Plaintiff's motions to
proceed leave to IFP and to exceed Local Rule 8.2.a's
page limitations, denied his motion for appointment of
counsel, and sua sponte dismissed all claims alleged to have
arisen at CAL as untimely pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). See ECF No. 5 at
8-11, 14-15. The Court further granted Plaintiff 45 days in
which to file an Amended Complaint, but explicitly cautioned
that should his Amended Complaint fail to allege any
plausible and timely claim for relief against the CAL
Defendants, yet also re-allege timely and plausible claims
for relief arising at CCI or KVSP against correctional
officials employed by those institutions, the Court would sua
sponte dismiss all untimely claims alleged relating to CAL
without further leave to amend. This Court advised it would
transfer the remainder of the case to the Eastern District of
California, where venue would then be proper pursuant to 28
U.S.C. §§ 84(b) and 1406(a). Id. at 12-15
(citing Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
Cir. 2015) (“A district court should not dismiss a pro
se complaint without leave to amend [pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii)] unless ‘it is absolutely
clear that the deficiencies of the complaint could not be
cured by amendment.'”) (citation omitted);
Cervantes v. City of San Diego, 5 F.3d 1273, 1277
(9th Cir. 1993) (noting that a time-barred action may not
ordinarily be dismissed at pleading without leave to amend
unless “some fact, evident from the face of the
complaint, support[s] the conclusion that the plaintiff could
not prevail, as a matter of law, on the equitable tolling
September 18, 2017, the Court denied Plaintiff's request
to file a Supplemental Complaint pursuant to Fed.R.Civ.P.
15(d), but granted him additional time in which to file an
Amended Complaint that addressed the pleading deficiencies
noted in the Court's July 12, 2017 Order. See
ECF No. 10.
October 16, 2017, Plaintiff timely filed his Amended
Complaint (“FAC”) (ECF No. 11), together with a
Motion for Extension of Time (ECF No. 15), another Motion to
Appoint Counsel (ECF No. 13), and a Motion to
“Expand” his FAC beyond the page limitations set
by S.D. Cal. CivLR 8.2a, and the Court's previous orders.
See ECF No. 17.
Motion for Extension of Time
filed his current Motion for Extension of Time together with
his FAC, but his FAC was timely filed on October 16, 2017
(ECF No. 11). Therefore, his request for an extension of time
in which to submit his FAC (ECF No. 15) is unnecessary and
DENIED as moot.
Motion to Appoint Counsel
renewed Motion to Appoint Counsel (ECF No. 13), is
practically identical to the one this Court denied on July
12, 2017. See ECF No. 5 at 4-5, 14. He simply
repeats his previous request that the Court appoint him
counsel due to his indigence, his “health
complications, ” limited knowledge of the law and
access to the law library, and his eventual need for
assistance in presenting evidence at trial and
cross-examining witnesses. See ECF No. 13 at 1.
Plaintiff knows, all documents filed by persons proceeding
without trained legal counsel are liberally construed, and
“a pro se complaint, however inartfully pleaded, [is]
held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429
U.S. 97, 106 (1976) (internal quotations omitted)). Moreover,
there is no constitutional right to counsel in a civil case,
and none of Plaintiff's successive pleadings in this
matter demand that the Court exercise its limited discretion
to request that an attorney represent him pro bono pursuant
to 28 U.S.C. § 1915(e)(1) at this stage of the case.
See Lassiter v. Dept. of Social Servs., 452 U.S. 18,
25 (1981); Agyeman v. Corr. Corp. of America, 390
F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional
circumstances” support such a discretionary
appointment. Terrell v. Brewer, 935 F.3d 1015, 1017
(9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009). Exceptional circumstances exist only where
there is cumulative showing of both a likelihood of success
on the merits and a demonstrated inability of the pro se
litigant to articulate his claims in light of their legal
complexity. Palmer, 560 F.3d at 970.
currently pleaded, Plaintiff's FAC, like his original
Complaint, is verbose and convoluted. However, both his
pleadings demonstrate that while he may not be formally
trained in law, Plaintiff is more than fully capable of
legibly articulating the facts and circumstances relevant to
his purported Eighth Amendment claims. The basis for
Plaintiff's suit is neither atypical nor legally
“complex.” Agyeman, 390 F.3d at 1103.
for the reasons discussed below, Plaintiff still fails to
allege facts sufficient to show he is likely to succeed on
the merits-especially in relation to the claims re-alleged
against CAL officials which, on the face of his pleadings
remain barred by the statute of limitations, and for which he
offers no basis for equitable tolling. The remainder of his
claims are subject to transfer to the Eastern District, and
while this Court defers consideration of the sufficiency of
all claims alleged to have arisen in Kern County against the
remaining named CCI and KVSP Defendants to the Eastern
District, nothing in Plaintiff's FAC demonstrates to this
Court that the extraordinary circumstances required by 28
U.S.C. § 1915(e)(1) are present at this time.
Id.; 28 U.S.C. § 1406(a); see also Cano v.
Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014).
these reasons, the Court DENIES Plaintiff's renewed
Motion for Appointment of Counsel (ECF No. 13).
Motion to Expand Complaint
did in conjunction with his original pleading, and despite
two previous Orders compelling his compliance with
Fed.R.Civ.P. 8(a) and Local Rule 8.2.a, see e.g.,
ECF Nos. 5 at 15; ECF No. 10 at 7, Plaintiff has filed yet
another Motion to “expand” his FAC beyond the
pleading format and page limits set by S.D. Cal. CivLR 8.2.a,
which requires prisoners to use the Court form § 1983
Complaint, and attach no more than 15 additional pages.
See ECF No. 17. Plaintiff claims, as he ...