(PC) Shavers v. Chandler

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JESSE LEE SHAVERS, JR., Case No. 2:23-cv-00112-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN 13 v. AMENDED COMPLAINT AND DENYING HIS MOTION FOR THE APPOINTMENT 14 R. CHANDLER, et al., OF COUNSEL 15 Defendants. ECF Nos. 11 & 13 16 SCREENING ORDER THAT PLAINTIFF: 17 (1) FILE AN AMENDED COMPLAINT; OR [18] (2) STAND BY HIS COMPLAINT 19 SUBJECT TO A RECOMMENDATION THAT IT BE 20 DISMISSED 21 ECF No. 12 22 THIRTY-DAY DEADLINE [23] 24 Plaintiff Jesse Lee Shavers is a state inmate proceeding without counsel in this civil rights 25 action brought under 42 U.S.C. § 1983 . He alleges in his second amended complaint that 26 defendant correctional officers Trujillo and Schriver violated his Eighth Amendment rights.1 I [27] 1 Plaintiff filed a motion for leave to file an amended complaint on the same day he filed 28 his second amended complaint; that motion is granted. ECF No. 11. 1 will give plaintiff an opportunity to file a third amended complaint; his second amended 2 complaint does not state a cognizable claim. 3 Appointment of Counsel 4 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 5 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 6 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296 , 7 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C. 8 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 9 counsel”); Rand, 113 F.3d at 1525 . However, without means to compensate counsel, the court 10 will seek volunteer counsel only in exceptional circumstances. In determining whether such 11 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 12 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 13 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 14 Plaintiff has not demonstrated that he is likely to succeed on the merits, thus I cannot 15 conclude that exceptional circumstances requiring the appointment of counsel are present. 16 Screening and Pleading Requirements 17 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 18 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 19 claims and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a 20 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is 21 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 22 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 23 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 24 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 25 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 26 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 27 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 28 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024 , 1 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 2 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257 , 1264 3 n.2 (9th Cir. 2006) (en banc) (citations omitted). 4 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 5 U.S. 519 , 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 6 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 7 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 8 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 9 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251 , 10 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 11 Analysis 12 Plaintiff’s second amended complaint alleges that defendants Trujillo and Schriver failed 13 to protect him from assault by another prisoner. ECF No. 12 at 1. Plaintiff provides no further 14 allegations regarding the events at issue. His threadbare allegations fall short of the pleading 15 standard articulated in Twombly and Iqbal. There are no facts alleged in the complaint that would 16 inform defendant of any allegedly wrongful conduct. See Jones v. Cmty. Redev. Agency, 733 17 F.2d 646, 649 (9th Cir. 1984) (“The plaintiff must allege with at least some degree of particularity 18 overt acts which defendants engaged in that support the plaintiff’s claim.”). 19 I will grant him a chance to amend his complaint. If plaintiff decides to file an amended 20 complaint, the amended complaint will supersede the current complaint. See Lacey v. Maricopa 21 Cnty., 693 F. 3d 896 , 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint 22 will need to be complete on its face without reference to the prior pleading. See E.D. Cal. Local 23 Rule 220. Once an amended complaint is filed, the current complaint no longer serves any 24 function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need to 25 assert each claim and allege each defendant’s involvement in sufficient detail. The amended 26 complaint should be titled “Third Amended Complaint” and refer to the appropriate case number. 27 If plaintiff does not file an amended complaint, I will recommend that this action be dismissed. 28 Accordingly, it is ORDERED that: 1 1. Plaintiff's motion to file an amended complaint, ECF No. 11, is granted, and his 2 | second amended complaint, ECF No. 12, is deemed timely. 3 2. Plaintiffs motion for the appointment of counsel, ECF No. 13, is denied. 4 3. Within thirty days of the service of this order, plaintiff must either file an amended 5 | complaint or advise the court he wishes stand by his current complaint. If he selects the latter 6 | option, I will recommend that this action be dismissed. 7 4. Failure to comply with this order may result in the dismissal of this action. 8 5. The clerk’s office is directed to send plaintiff a complaint form. [9] 10 IT IS SO ORDERED. i ( ie — Dated: _ March 27, 2023 q——— 12 JEREMY D. PETERSON B UNITED STATES MAGISTRATE JUDGE