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Hart v. Kernan

United States District Court, N.D. California

December 5, 2019

DARRON NYGENE HART, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          ORDER OF PARTIAL DISMISSAL AND SERVICE; DENYING MOTION FOR APPOINTMENT OF COUNSEL; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK (DOCKET NO. 6)

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE.

         Plaintiff, a California state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against officers and medical staff at Salinas Valley State Prison (“SVSP”), where he was formerly housed.[1] Plaintiff has filed a motion for appointment of counsel. (Docket No. 6.) Plaintiff's motion for leave to proceed in forma pauperis shall be addressed in a separate order.

         DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiff's Claims

         Plaintiff claims that he has been housed in a cell with hazardous and unsafe weather-related leaks at SVSP, which resulted in him suffering a slip and fall on January 18, 2018, when he stepped into a pool of rain water that had collected on the floor of his cell. (Compl. at 3B.) Plaintiff claims that he had requested Defendant Officer T. Wheeler several times to be moved to a safe cell, but that he was merely given a squeegee to push the water out of his cell. (Id. at 3A.) Plaintiff claims he injured his head, neck, and entire back due to the fall. (Id. at 3B.) Plaintiff claims that the medical care he received thereafter, including pain medication and a cane accommodation, from Defendants Dr. Waheed Ibrahimi, Dr. Rosana Javate, Nurse Riesha Arnet, Dr. Lam, Dr. Heden, Nurse Alfred Valera, Nurse Kirk, Nurse Helen Thornton, and Dr. Darrin Bright amounted to deliberate indifference to serious medical needs. (Id. at 3C, 3F, 3G, 3M-3P, 3Q-3S, 3V-3W, 3X, 3Y.) Plaintiff also claims that Defendants Chief Deputy Warden T. Foss, Captain Celaya, Lt. Ruiz, Sgt. Garcia, Officer Murphy, and Officer T. Wheeler knew about the unsafe cell conditions and yet continued to expose him to an unreasonable risk of serious harm and deprived him of a basis human need, i.e., “safe and humane shelter free of exposure to unsafe and unsanitary outside elements which resulted in continued injury.” (Id. at 3H, 3Z.) Liberally construed, Plaintiff states a cognizable claim under the Eighth Amendment for exposure to unsafe conditions and for deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 832 (1994).

         Plaintiff alleges generally that the Warden of SVSP and Secretary Scott Kernan knew of the leaking cells prior to his slip and fall and did not condemn the cells. (Compl. at 3Z.) Although the Warden of SVSP could arguably have been aware of the unsafe conditions of the cells because he is in a supervisory position at the prison, there is no explanation as to how Secretary Scott Kernan, who has no involvement in the daily operations of the SVSP, would have known about Plaintiff's circumstances and could have acted. Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633; see, e.g., Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (prison official's failure to intervene to prevent 8th Amendment violation may be basis for liability). Other than his conclusory accusation, Plaintiff sets forth no facts to support his claim that Secretary Kernan actively participated in the alleged deprivation of his Eighth Amendment rights at SVSP. Accordingly, the claim against Defendant Kernan is DISMISSED for failure to state a claim.

         C. Motion for Appointment of Counsel

         Plaintiff has filed a motion for appointment of counsel. (Docket No. 6.) There is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981)1; Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an indigent litigant under § 1915 is within “the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Plaintiff asserts that he is indigent and has limited access to the law library and limited knowledge of the law. (Docket No. 4.) None of these reasons distinguish Plaintiff from other similarly situated pro se incarcerated plaintiffs. Accordingly, Plaintiff's motion for appointment of counsel is DENIED without prejudice for lack of exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

         CONCLUSION

         For the reasons state above, the Court orders as follows:

         1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint, all attachments thereto, and a copy of this order upon Defendants Warden William Muniz, Chief Deputy Warden T. Foss, Capt. Celaya (Facility B), Lt. Ruiz, Sgt. Garcia (Facility B), Correctional Officer T. Wheeler, Correctional Officer Murphy, Dr. Darrin Bright (CP&S), Dr. R. Javate, Nurse Riesha Arnet, Dr. Lam, Dr. Heden, Nurse Alfred Valera, Nurse Helen Thornton, and ...


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