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Ferguson v. Villa

United States District Court, E.D. California

February 5, 2018

RAFAEL FERGUSON, CDCR #V-37116, Plaintiff,
M. VILLA, et al., Defendants.


          Hon. John A. Houston United States District Judge

         I. Procedural History

         RAFAEL 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.

         In his 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.

         On 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 issue.”)).

         On 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.

         On 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.

         II. Motion for Extension of Time

         Plaintiff 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.

         III. Motion to Appoint Counsel

         Plaintiff's 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.

         As 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.

         As 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.

         Moreover, 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).

         For these reasons, the Court DENIES Plaintiff's renewed Motion for Appointment of Counsel (ECF No. 13).

         IV. Motion to Expand Complaint

         As he 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 ...

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