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 has filed two
applications to proceed in forma pauperis (ECF Nos. 5, 7), a
request for appointment of counsel (ECF No. 6), six motions
for injunctive relief (ECF Nos. 20, 21, 22, 24, 30, 31), two
motions to amend (ECF Nos. 25, 27), and a request to
“add” defendants (ECF No. 29).
Application to Proceed In Forma Pauperis
court has reviewed the second of plaintiff's applications
(ECF No. 7, 13) and finds that it 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).
other application to proceed in forma pauperis (ECF No. 5) is
denied as moot.
Appointment of Counsel
requests that the court appoint counsel. ECF No. 6. 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.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) requires only ‘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.
555 (2007) (alteration in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, in order to
survive dismissal for failure to state a claim, a complaint
must contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Id. (citations
omitted). “[T]he pleading must contain something more .
. . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.”
Id. (alteration in original) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure, 1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 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.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).