Bruins v. Whitman

          ORDER: 1) GRANTING MOTION TO AMEND COMPLAINT; 2) DIRECTING CLERK OF COURT TO FILE THIRD AMENDED COMPLAINT; 3) DENYING MOTION FOR APPOINTMENT OF COUNSEL; AND 4) DISMISSING THIRD AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. § 1915A(B) (ECF NOS. 10, 12)

          HON. CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE

         I. PROCEDURAL HISTORY

         On July 10, 2019, Andrew David Bruins (“Plaintiff”), a prisoner incarcerated at Calipatria State Prison (“CAL”) located in Calipatria, California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

         On July 22, 2019, the Court conducted the required sua sponte screening of Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (See ECF No. 4.) In the Court's July 22, 2019 Order, the Court granted Plaintiff's IFP status but simultaneously dismissed his Complaint for failing to state a claim upon which § 1983 relief could be granted. (See Id. at 8-9.) The Court informed Plaintiff of the deficiencies in his pleading and granted him leave to file an amended complaint. (See Id. at 8.) On August 29, 2019, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF No. 6.) However, the Court again found Plaintiff failed to state a claim and dismissed his FAC with leave to file another amended complaint. (See ECF No. 7 at 6-7.)

         On November 25, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). (See ECF No. 8.) However, before the Court could conduct the required sua sponte screening, Plaintiff filed a “Motion to Amend Complaint, ” along with a proposed amended complaint. (ECF Nos. 12, 12-1.) A review of the proposed amended complaint shows that it is virtually identical to Plaintiff's SAC. Thus, the Court GRANTS Plaintiff's Motion to Amend and DIRECTS the Clerk of Court to file his proposed amended complaint, see ECF No. 12-1, as Plaintiff's Third Amended Complaint (“TAC”). In addition, Plaintiff has filed a “Motion for Appointment of Counsel.” (ECF No. 10.)

         II. MOTION TO APPOINT COUNSEL

         In his Motion, Plaintiff requests the appointment of counsel because he is unable to afford counsel and his “imprisonment will greatly limit his ability to litigate.” (ECF No. 10 at 1.)

         However, there is no constitutional right to counsel in a civil case. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider whether there is a ‘likelihood of success on the merits' and whether ‘the prisoner is unable to articulate his claims in light of the complexity of the legal issues involved.'” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970).

         As currently pleaded, Plaintiff's TAC demonstrates neither a likelihood of success nor the legal complexity required to support the appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970. For the reasons discussed more fully below, Plaintiff's TAC requires sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and it has become clear that he is unlikely to succeed on the merits of any potential constitutional claim.

         Therefore, the Court finds no “exceptional circumstances” currently exist and DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 5).

         III. SCREENING OF TAC (28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b))

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] 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, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain sufficient ...