United States District Court, S.D. California
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)
CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE
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.)
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.)
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
MOTION TO APPOINT COUNSEL
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.)
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).
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
the Court finds no “exceptional circumstances”
currently exist and DENIES Plaintiff's
Motion to Appoint Counsel (ECF No. 5).
SCREENING OF TAC (28 U.S.C. §§ 1915(e)(2)(B) and
Standard of Review
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)).
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 ...