United States District Court, E.D. California
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 ...