Koch v. Ahlin

          ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF NO. 16.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Roland Thomas Koch (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this case on April 19, 2018. (ECF No. 1.)

         On December 18, 2018, the court screened the Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 15.) On January 10, 2019, Plaintiff filed the First Amended Complaint which is now before the court for screening. 28 U.S.C. § 1915. (ECF No. 16.)

         II. SCREENING REQUIREMENT

         Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners).

         “Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, ” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed.R.Civ.P. 8(a). 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). “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

         Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         In reviewing the pro se complaint, the court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability . . .‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         III. SUMMARY OF FIRST AMENDED COMPLAINT

         Plaintiff is a civil detainee presently detained at Coalinga State Hospital (CSH), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Pam Ahlin (Executive Director), John Doe (staff), Jane Doe (staff), and Jack Carter (Chief of Police Services, CSH) (collectively, “Defendants”).

         Plaintiff's allegations follow:

         The Executive Director of State Hospitals, Pam Ahlin, ordered her employees to confiscate property from Plaintiff and other State Hospital patients which caused Plaintiff's property to be taken, denying him of his right to own and possess legal property.

         Jack Carter, Chief of Police Services of CSH, supervised his employees ordering them to confiscate property from Plaintiff and others. Plaintiff's legal property was taken. John Doe and Jane Doe (staff, not officers) stole Plaintiff's property and destroyed it, and refused to return it or reimburse Plaintiff for more than a year.

         Plaintiff asserts that he is not a “prisoner, ” is not “committed, ” and is not a “patient, ” yet “prisoners” are allowed to have an X-box and MP3 music player, but Plaintiff is not. (ECF No. 16 at 9.) Plaintiff alleges that he has been fighting for ten years to go to court to determine if he should be detained at CSH. Plaintiff asserts that he is being detained because he might/could break a law, and his property is being taken and destroyed because he might/could break a law with it. Plaintiff alleges that he is being punished more than prisoners who did break a law, many who are serving sentences for sex offenses. The facility falsified information to the courts with regard to “patients” possessing property. (ECF No. 16 at 10.) Confiscation of property for security reasons is false. Employees used physical force to take legal property from Plaintiff.

         A simple headphone cord is obviously not contraband of any sort, and yet it was confiscated as were a set of earbud headphones, a radio, a tablet, remote control to Plaintiff's TV, pens, pencils, and highlighters. A year later, this dangerous contraband has not been returned or reimbursed.

         As relief, Plaintiff requests appointment of counsel, monetary damages, declaratory relief, and injunctive relief.

         IV. MOTION FOR APPOINTMENT OF COUNSEL

         Plaintiff requests appointment of counsel to assist him with this lawsuit. (ECF No. 16 at 11 ¶ 1(a)). Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (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, the district court must evaluate both the likelihood of success of 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).

         In the present case, the court does not find the required exceptional circumstances. At this early stage in the proceedings the court cannot make a determination that Plaintiff is likely to succeed on the merits. Plaintiff's complaint is in the screening stage under 28 U.S.C. 1915. The legal issues in this case -- whether Defendants violated Plaintiff's rights when they took his personal property, denied him access to the courts and freedom of association, and used force or threat of force against him -- are not complex. Moreover, based on a review of the record in this case, the court finds that Plaintiff can adequately articulate his claims. Therefore, Plaintiff's motion for appointment of counsel shall be denied without prejudice, to renewal of the motion at a later stage of the proceedings.

         V. PLAINTIFF'S CLAIMS

         The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ...