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Cortinas v. McDonald

United States District Court, E.D. California

December 3, 2019

LARRY WILLIAM CORTINAS, Plaintiff,
v.
CORRECTIONAL OFFICER MCDONALD, Defendant.

          ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ON COGNIZABLE CLAIM (ECF No. 1) THIRTY-DAY DEADLINE

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Larry William Cortinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. The matter was transferred to this Court on September 13, 2019. (ECF No. 5.) Plaintiff filed his complaint, which includes a request for appointment of counsel, on September 7, 2019. (ECF No. 1.)

         I. Request for Appointment of Counsel

         As indicated, Plaintiff requests the appointment of counsel in this action. Although not entirely clear, it appears that Plaintiff seeks such an appointment because he is physically and mentally disabled. (ECF No. 1 at 6.)

         Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev'd in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

         Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

         The Court has considered Plaintiff's request, but does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners who are proceeding pro se almost daily. Although Plaintiff claims that he is physically and mentally disabled, he does not provide any information to support this claim or to demonstrate that his physical or mental issues prevent him from effectively litigating his case. Furthermore, nothing in Plaintiff's complaint suggests that he is incapable of articulating a factual basis for his Eighth Amendment excessive force claim. As discussed below, based on the Court's initial screening, Plaintiff has pled sufficient factual content to state a plausible Eighth Amendment claim for relief. For these reasons, Plaintiff's motion to appoint counsel is HEREBY DENIED without prejudice.

         II. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

         To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

         A. Plaintiff's Allegations

         Plaintiff is currently housed at California State Prison, Sacramento. The events in the complaint are alleged to have occurred while Plaintiff was housed at California State Prison, Corcoran in Corcoran, California. Plaintiff asserts claims for violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and the Eighth Amendment to the United States Constitution. Plaintiff names Defendant McDonald as the sole defendant and alleges as follows:

MARCH 17, 2018 I was inside California state prison Corcoran hospital. I suffered a black out from my heart condiction. Correctional Officer Mc Donald was allow with me in the hospital room. He was asking me Questions which I would not answer. So he [Mc Donald] grabed my handcuffed to the hospital bed right hand. Mc Donald SQUEEZED my hand until the bones broke. I had surgery upon the hand to set the bones with pins. Mc Donald used this force to punish me for not responding to his questions. NO INCIDENT REPORT was filed No rule violation occured., A use of force video was made. The medical records have my statement that Mc Donald ...

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