Robinson v. Zembrano

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No.: 3:20-cv-2106-GPC-AHG JAVAUGHN ROBINSON, [12] CDCR #BD-1411, ORDER: [13] Plaintiff, (1) DENYING MOTION TO [14] v. APPOINT COUNSEL; AND [15] ZEMBRANO; (2) DIRECTING U.S. MARSHAL TO 16 DUARTE III, EFFECT SERVICE OF FIRST 17 Defendants. AMENDED COMPLAINT UPON DEFENDANTS PURSUANT TO 28 18 U.S.C. § 1915 (d) AND FED. R. CIV. P. 19 4(c)(3) [21] 22 I. Procedural History 23 On October 26, 2020, Plaintiff Javaughn Robinson, a transgender inmate, currently 24 incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 25 California, and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. Section 26 1983. (See Compl., ECF No. 1.) In addition, Plaintiff filed a Motion to Proceed In Forma 27 Pauperis (“IFP”) (See ECF No. 2.) 1 On November 16, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP but 2 DISMISSED her Complaint for failing to state a claim. (See Nov. 16, 2020 Order at 8-9.) 3 Plaintiff was granted leave to file an amended complaint in order to correct the deficiencies 4 of pleading identified in the Court’s Order. (See id.) 5 Plaintiff filed her First Amended Complaint (“FAC”) on January 21, 2021. (See 6 FAC, ECF No. 8.) In addition, Plaintiff filed a Motion to Appoint Counsel on February 9, 7 2021. (See Pl.’s Mot., ECF No. 10.) 8 II. Plaintiff’s Motion to Appoint Counsel 9 In her Motion, Plaintiff seeks counsel on the grounds that she lacks adequate 10 access to “proper legal supplies” and “legal research.” Pl.’s Mot. at 1. In addition, 11 Plaintiff indicates that she “suffers from mental health disorders” and is indigent. Id. 12 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 13 of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 14 2009). And while 28 U.S.C. § 1915 (e)(1) grants the district court limited discretion to 15 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 16 America, 390 F.3d 1101 , 1103 (9th Cir. 2004), this discretion may be exercised only 17 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015 , 1017 18 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 19 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 20 unable to articulate [her] claims in light of the complexity of the legal issues involved.’” 21 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 22 at 970 ). 23 The Court agrees that pro se litigants may be better served with the assistance of 24 counsel—but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 25 1997) (affirming denial of counsel based on claims that pro se plaintiff “may well have 26 fared better-particularly in the realms of discovery and the securing of expert 27 testimony.”), withdrawn in part on reh’g en banc and overruled on other grounds, 154 1 F.3d 952 (9th Cir. 1998). “Concerns regarding investigation and discovery are . . . not 2 exceptional factors,” and while a pro se litigant “may not have vast resources or legal 3 training,” these are among the commonly shared “types of difficulties encountered by 4 many pro litigants.” Wells v. Washington State Dep’t of Corr., No. C13-234 RJB/KLS, [5] 2013 WL 4009076 , at *1 (W.D. Wash. Aug. 5, 2013). 6 Here, nothing in Plaintiff’s FAC suggests she is incapable of articulating the 7 factual basis for her claims, which appear “relatively straightforward.” Harrington, 785 8 F.3d at 1309. In fact, the Court finds, based on its initial screening of Plaintiff’s FAC 9 under the standards of review discussed below, that she has pleaded a plausible claim for 10 relief. 11 In addition, while Plaintiff may have sufficiently pleaded a plausible claim at this 12 preliminary stage of the proceedings, she has yet to demonstrate and it is too soon to tell 13 whether she is likely to succeed on the merits. Harrington, 785 F.3d at 1309 ; Cano v. 14 Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner 15 could articulate his claims in light of the complexity of the issues involved, but did not 16 show likelihood of succeed on the merits); see also Dickey v. Strayhorn, Civil Case No. 17 3:17-cv-00546-JLS-JLB, 2017 WL 3118797 , at *1 (S.D. Cal. July 21, 2017), 18 reconsideration denied, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 4271975 at *1 19 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has a likelihood of success at trial, 20 Plaintiff must do more than merely allege that one of his constitutional rights was 21 violated. He must provide evidence to the effect that he has a likelihood of success on the 22 merits of his allegations.”); Torbert v. Gore, Civil Case No. 3:14-cv-02991-BEN-NLS, [23] 2016 WL 1399230 , at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff that provides no evidence 24 of his likelihood of success at trial fails to satisfy the first factor of the [exceptional 25 circumstances] test.”). 26 / / / 27 / / / 1 Therefore, the Court finds no “exceptional circumstances” exist at this preliminary 2 stage of the case and DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 10) 3 without prejudice. 4 III. Screening Pursuant to 28 U.S.C. Sections 1915 (e)(2)(B) and 1915A 5 A. Standard of Review 6 Because Plaintiff is a prisoner and is proceeding IFP, her FAC requires a pre7 Answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 9 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 10 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 11 (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 13 the targets of frivolous or malicious suits need not bear the expense of responding.’” 14 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 15 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 23 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, [24] 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 25 While the court “ha[s] an obligation where the petitioner is pro se, particularly in civil 26 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 27 any doubt,” Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (citing Bretz v. 1 Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements 2 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 3 F.2d 266, 268 (9th Cir. 1982). 4 “Courts must consider the complaint in its entirety,” including “documents 5 incorporated into the complaint by reference” to be part of the pleading when 6 determining whether the plaintiff has stated a claim upon which relief may be granted. 7 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. 8 Dep’t of Corrs., 151 F.3d 1194 , 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) 9 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading 10 for all purposes.”). 11 B. Plaintiff’s Factual Allegations 12 Plaintiff, a transgender inmate, was “escorted by ambulance to the emergency 13 room” at Alvarado Hospital on August 28, 2020. (FAC at 1-2.) Plaintiff had “severe 14 fractures to her ankle.” (Id. at 2.) Plaintiff was later discharged the same day to the 15 “custody of RJD correctional officers” Zembrano and Duarte III. (Id.) Zembrano and 16 Duarte “shackled Plaintiff’s wrists and ankles” to escort her back to RJD. (Id.) 17 During this period, Plaintiff “attempted to report to Defendant Duarte and an ER 18 nurse of serious allegations” of being “sexually assaulted by her cellmate at RJD.” (Id.) 19 However, Plaintiff claims Duarte “refused to listen to Plaintiff’s ‘PREA1’ allegations and 20 instead told Plaintiff that she should report such allegations on ‘someone else’s time.’” 21 (Id.) “Fearful, Plaintiff refused to leave the ER until her PREA allegations were heard 22 by an authority figure.” (Id.) 23 Plaintiff alleges Duarte “became even more hostile towards Plaintiff and further 24 threatened her with administrative segregation (“Ad-Seg”) if she chose to report her 25 PREA allegations any further” (Id.) As Plaintiff attempted to tell her allegations to the [26] 27 1 PREA is an acronym for the Prison Rape Elimination Act of 2003. See 34 U.S.C. § 30302 . 1 ER nurse, “Duarte continuously tapped his gun in a threatening manner and ordered 2 Plaintiff to stop talking or she [would] be placed in Ad-Seg.” (Id.) Because she was 3 “intimidated by Defendant Duarte’s threats, Plaintiff complied and was subsequently 4 escorted by Defendants into a transportation vehicle.” (Id.) 5 After Plaintiff was secured in the vehicle, she made “numerous requests” to roll 6 down the windows or turn on the air conditioner because due to the “extreme heat,” 7 Plaintiff found it difficult to breath. (Id. at 2-3.) Both Defendants refused to alleviate the 8 conditions until Plaintiff “threatened them with a staff complaint and lawsuits.” (Id. at 9 3.) 10 Plaintiff asked Duarte if he was “serious about sending her to Ad-Seg” and he 11 responded, “hell yeah, if you keep threatening us with staff complaints and lawsuits and 12 stop lying about being sexually assaulted.” (Id.) Zembrano began “driving frantically 13 over the speed limit causing Plaintiff, who was shackled, to slam numerous times into the 14 car’s interior structure causing extreme pain to Plaintiff’s fractured ankle.” (Id.) Duarte 15 stated to Plaintiff, “how’s your ankle now liar!” and “began laughing” as Plaintiff told 16 him that her ankle was in “extreme pain.” (Id.) Plaintiff also claims Duarte sexually 17 harassed her and in fear, “Plaintiff complied to Defendant Duartes sexual advances.” 18 (Id.) 19 Plaintiff seeks punitive and compensatory damages from both Defendants. (Id. at 20 4-5.) 21 C. Service of Defendants 22 As currently pleaded, the Court finds Plaintiff’s FAC contains “sufficient factual 23 matter, accepted as true,” to state First and Eighth Amendment claims for relief that are 24 “plausible on its face,” Iqbal, 556 U.S. at 678 , and therefore, sufficient to survive the 25 “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 26 1915A(b). See Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 678 . [27] 1 Therefore, the Court will direct the U.S. Marshal to effect service of summons 2 Plaintiff’s FAC on her behalf.2 See 28 U.S.C. § 1915 (d) (“The officers of the court shall 3 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 5 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 6 U.S.C. § 1915 .”). 7 IV. Conclusion and Order 8 For the reasons explained, the Court: 9 1. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 10) without 10 prejudice. 11 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 8) 12 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. 13 In addition, the Clerk will provide Plaintiff with a certified copy of the November 16, 14 2020 IFP Order, certified copies of her FAC, and the summons so that she may serve the 15 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 16 285s as completely and accurately as possible, include an address where each named 17 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 18 return them to the United States Marshal according to the instructions the Clerk provides 19 in the letter accompanying her IFP Package. 20 3. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 21 the Defendants as directed by Plaintiff on the USM Form 285s provided to her. All costs 22 of that service will be advanced by the United States. See 28 U.S.C. § 1915 (d); Fed. R. 23 Civ. P. 4(c)(3). 24 / / / [25] 26 2 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. [27] Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 4. ORDERS Defendants, once they have been served, to reply to Plaintiff's 2 || FAC within the time provided by the applicable provisions of Federal Rule of Civil 3 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 4 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 5 || jail, prison, or other correctional facility under section 1983,” once the Court has 6 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b), 7 || and thus, has made a preliminary determination based on the face on the pleading alone 8 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” the Defendants are 9 || required to respond). 10 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 12 counsel, a copy of every further pleading, motion, or other document submitted for the 13 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 14 || original document she seeks to file with the Clerk of the Court, a certificate stating the 15 manner in which a true and correct copy of that document has been was served on 16 || Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 17 document received by the Court which has not been properly filed with the Clerk or 18 || which fails to include a Certificate of Service upon the Defendants, or their counsel, may 19 || be disregarded. 20 IT IS SO ORDERED. 21 ||Dated: February 10, 2021 2 22 Hon. aale Ck 93 United States District Judge