United States District Court, N.D. California
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)
J. DAVILA UNITED STATES DISTRICT JUDGE.
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. 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.
Standard of Review
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).
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).
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).
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.
Motion for Appointment of Counsel
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).
reasons state above, the Court orders as follows:
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 ...