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Gonzalez v. Malhotra

United States District Court, S.D. California

December 3, 2019



          Hon. Janis L. Sammartino United States District Judge

         Plaintiff Manuel Antonio Gonzalez, currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil action filed pursuant to 42 U.S.C. § 1983. ECF No. 1 (“Compl.”). Plaintiff has filed a Motion to Appoint Counsel (ECF No. 2), a Motion for Preliminary Injunction (ECF No. 3), and a Motion for a Temporary Restraining Order (“TRO”) (ECF No. 4). Plaintiff prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action at the time he submitted his Complaint. See ECF No. 5. The Court will first consider Plaintiff's Motion to Appoint Counsel, then conduct the required sua sponte screening pursuant to 28 U.S.C. § 1915A, and finally turn to Plaintiff's Motions for TRO and Preliminary Injunction.


         Plaintiff requests that the Court appoint him counsel in this matter. See ECF No. 2. There is no constitutional right to counsel in a civil case. See Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A district court may at its discretion appoint counsel if “exceptional circumstances” exist. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991). Exceptional circumstances exist 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. Id.

         Here, nothing in the record at this stage in the case demands that the Court exercise its limited discretion to request that an attorney represent Plaintiff pro bono pursuant to 28 U.S.C. § 1915(e)(1). As currently pled, Plaintiff's Complaint demonstrates that, while he may not be formally trained in law, he nevertheless is capable of articulating the facts and circumstances relevant to his claims, which are typical and not legally “complex.” Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet to show he is likely to succeed on the merits of his claims. Therefore, the Court DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 2).


         I. Legal Standard

         Plaintiff was incarcerated at the time he filed this action. See generally Compl. “As used in this section, the term ‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1915A(c); see also Olivas v. Nev. ex rel. Dept. of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing 28 U.S.C. § 1915(h), 1915A(c); 42 U.S.C. § 1997e(h)).

         Section 1915A “mandates early review-‘before docketing [] or [] as soon as practicable after docketing'-for all complaints ‘in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.'” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of section 1915A apply to all prisoners--no matter what their fee status is--who bring suit against a governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any portion of the complaint, ” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Olivas, 856 F.3d at 1283 (quoting 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).[1]

         Section 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         II. Factual Allegations

         Plaintiff alleges that he was “subjected” to a “past head injury” on March 18, 2014. Compl. at 13. Plaintiff alleges that this injury resulted in “concussion, post-concussion syndrome, long term memory loss, short term memory loss, off balance, loss of coordination, ” and “constant pressure in head.” Id. He further alleges that the “constant pressure in head” later led to “high blood pressure in eyes, damaging eye sight, irreparable nerve damage” which resulted in Plaintiff having to “take prescription eye drops” for the rest of his life. Id.

         Plaintiff alleges that Defendant Dr. Malhotra, a neurologist, “never ordered [an] EMG test for nerve damage” resulting in “nerve damage and optic nerve damage.” Id. Plaintiff claims that this damage to his eyes was “discovered by neuro-ophthalmologist” in February of 2019. Id. Plaintiff alleges Dr. Malhotra “was trying to cover up [Plaintiff's] injuries” because he failed to provide “adequate medical care.” Id. at 14.

         Plaintiff alleges Defendant Dr. Zhang, his primary care provider, denied him adequate medical care when he purportedly failed to “re-schedule [a] return follow up appointment with [a] ‘neuro ophthalmologist.'” Id. at 16. The neuro ophthalmologist had “ordered [a] ‘return appointment follow up' . . . specifically to monitor high blood pressure in eyes and the effects of prescription eye drops, and monitor damage eyesight.” Id.

         Plaintiff alleges that when he was examined by Dr. Zhang, Dr. Zhang “noted [that the] specialist report incorrectly stated glaucoma.” Id. Plaintiff alleges that although he had not been diagnosed with glaucoma, Dr. Zhang “refused to document Plaintiff's request to document the report was incorrect.” Id. Plaintiff alleges Dr. Zhang's refusal to schedule a follow up with the specialist caused Plaintiff to be “subjected to blindness” and “losing eyesight without [a] specialist monitoring [the] high blood pressure in eyes” or receiving “prescription eye drops.” Id. at 17.

         Plaintiff also alleges that Defendants “deliberately placed” him in the “wrong classification of ‘double cell clearance' when ‘single cell' was correct classification.” Id. at 18. Plaintiff alleges that he was “denied the right to appeal ICC committee decision.” Id. Plaintiff asserts that at his “initial review committee” when he arrived at RJD, he “explained” that if he Defendants housed him in a double cell, “any inmate [who] was placed in cell . . . would be assaulted in Plaintiff's self-defense.” Id. at 19. Based on his explanation, Plaintiff maintains that the classification committee should have scheduled a “separate single cell review committee.” Id. Plaintiff claims his correctional counselor, Medina, “never provided” ...

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