(PC) Azevedo v. Colusa County Jail et al, No. 2:2017cv00472 - Document 9 (E.D. Cal. 2017)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/27/2017 ORDERING Clerk of Court to randomly assign a district judge to this action and RECOMMENDING 1 Complaint be dismissed; 5 Motion to Proceed IFP, 6 Moti on for Appointment of Counsel, and 7 Motion for Issuance of Summonses should be denied as moot; and Clerk be directed to close this case. Assigned and referred to Judge John A. Mendez. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)
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(PC) Azevedo v. Colusa County Jail et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX LEONARD AZEVEDO, 12 13 14 No. 2:17-cv-0472 AC P Plaintiff, v. ORDER and COLUSA COUNTY JAIL, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 I. Introduction 18 Plaintiff is a county detainee incarcerated at the Colusa County Jail. Plaintiff proceeds pro 19 se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983; a motion to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915; a motion for appointment of counsel; and a motion for 21 issuance of summonses. 22 Plaintiff has consented to the jurisdiction of the undersigned Magistrate Judge for all 23 purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). See ECF No. 4. For the reasons 24 that follow, this court recommends the dismissal of this action without leave to amend and denial 25 of plaintiff’s motions as moot.a 26 II. In Forma Pauperis Application 27 Plaintiff has submitted an affidavit and jail trust account statement that make the showing 28 required by 28 U.S.C. § 1915(a). See ECF No. 5. Nevertheless, because this court recommends 1 Dockets.Justia.com 1 dismissal of this action without leave to amend, the court further recommends that plaintiff’s 2 request to proceed in forma pauperis be denied as moot. 3 III. 4 The court is required to screen complaints brought by prisoners seeking relief against a Legal Standards for Screening Prisoner Civil Rights Complaint 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); see 6 also 41 U.S.C. § 1983. The court must dismiss a complaint or portion thereof if the prisoner has 7 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 8 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 9 28 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either 10 in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 11 1221, 1227-28 (9th Cir. 1984). 12 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 13 opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See 14 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 15 IV. 16 Plaintiff makes the following three claims, see ECF No. 1: (1) that Colusa County Jail Screening of Plaintiff’s Complaint 17 Officer Keri King denied plaintiff breakfast on August 30, 2016, the morning plaintiff was 18 admitted to the jail; plaintiff states that he was arrested at 3:10 a.m., but King refused to give him 19 breakfast at 6:15 a.m., leaving him hungry and embarrassed; (2) that Colusa County Superior 20 Court Judge Jeffrey Thompson improperly denied plaintiff’s Marsden motion on November 23, 21 2016, denying plaintiff’s Sixth Amendment right to counsel and resulting in plaintiff receiving a 22 longer sentence than he should have received; and (3) that jail officials improperly recorded 23 plaintiff’s November 2016 telephone conversation with his attorney, in violation of state 24 regulations. 25 Plaintiff’s first claim is premised on the alleged denial of basic necessities. However, 26 denying plaintiff breakfast one morning more than a year ago does not state a cognizable Eighth 27 Amendment claim because it was not, objectively, “sufficiently serious” to violate constitutional 28 requirements and did not exhibit a “sufficiently culpable state of mind” on the part of Officer 2 1 King to support liability. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff’s exhibits 2 to the complaint confirm this assessment. As set forth in the response of an officer to plaintiff’s 3 grievance on the matter: “Spoke [with] Azevedo and explained reason on why he was not fed 4 while in sobering. Explained his combative and verbal abuse makes the situation unsafe.” ECF 5 No. 1 at 14. 6 Plaintiff’s second claim, against Judge Thompson, is barred because judges acting within 7 the course and scope of their judicial duties are absolutely immune from liability for damages 8 under Section 1983. Pierson v. Ray, 386 U.S. 547, 553-55 (1967). “A judge will . . . be subject 9 to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. 10 Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 11 (1871)). The scope of a judge’s jurisdiction is determined by the two-part test articulated in 12 Stump: whether the challenged act is “a function normally performed by a judge,” and whether 13 the parties “dealt with the judge in his judicial capacity.” Id. at 362. In the instant case, Judge 14 Thompson’s ruling on plaintiff’s Marsden motion was squarely within the scope of his judicial 15 authority, rendering him absolutely immune from liability under Section 1983. 16 In his third claim, plaintiff alleges a violation of state law when jail officials recorded 17 plaintiff’s November 2016 telephone conversation with his attorney. Plaintiff cites Cal. Code 18 Regs. tit. 15, § 3282, applicable to state prisons, which sets forth the procedures for designating 19 and implementing a confidential telephone call. See id., § 3282(g) (“If a call is determined to be 20 an attorney/inmate confidential phone call, in order for the inmate to place or receive the call it 21 must have already received approval/clearance in accordance with subsections (g)(1), (g)(2) and 22 (g)(4).”). Plaintiff’s exhibits demonstrate that he did not obtain prior approval for the subject 23 telephone call. As the Jail Commander responded in part to plaintiff’s subject grievance, ECF 24 No. 1 at 12: “You did not inform this facility of your new attorney # and therefore we were not 25 aware of it. The attorney’s number is now blocked from recording and any recordings have been 26 deleted by the phone provider. It is your responsibility to notify jail staff you have hired a new 27 attorney and they will make every effort to ensure your attorney client privilege is protected.” 28 Moreover, even if county jail officials were in violation of state law, such violation would not 3 1 state a federal civil rights claim. “To state a claim under § 1983, a plaintiff must allege the 2 violation of a right secured by the Constitution and laws of the United States[.]” West v. Atkins, 3 487 U.S. 42, 48 (1988). 4 The undersigned finds none of plaintiff’s putative claims cognizable under Section 1983, 5 and therefore concludes that amendment of the complaint would be futile. The court is persuaded 6 that plaintiff is unable to allege any facts, based upon the circumstances he challenges, that would 7 state a cognizable claim. “A district court may deny leave to amend when amendment would be 8 futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 9 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint 10 lacks merit entirely.”). 11 12 Accordingly, the undersigned recommends that this action be dismissed without leave to amend. 13 V. 14 Plaintiff requests that the court issue his proposed summonses on defendants. See ECF Request for Issuance of Summonses 15 No. 7. The request should be denied as moot. Plaintiff is informed that even if his complaint 16 stated a cognizable claim against a specific defendant, and he qualified for in forma pauperis 17 status, plaintiff would be required to complete and submit a summons provided by the court 18 which would, in turn, be served by U.S. Marshal. 19 VI. 20 Plaintiff requests appointment of counsel due to his poverty, imprisonment, limited Motion for Appointment of Counsel 21 knowledge of the law, need for assistance at trial, and dismissal of his prior cases. See ECF No. 22 6. This request should also be denied as moot. 23 Plaintiff is informed that district courts lack authority to require counsel to represent 24 indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 25 (1989). In certain exceptional circumstances, the district court may request the voluntary 26 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 27 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When 28 determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 4 1 likelihood of success on the merits as his ability to articulate his claims pro se in light of the 2 complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 3 Plaintiff bears the burden of demonstrating exceptional circumstances. Id. However, 4 circumstances common to most prisoners, such as lack of legal education and limited law library 5 access, do not establish the requisite exceptional circumstances. Id. 6 VII. 7 For the foregoing reasons, IT IS HEREBY ORDERED that the Clerk of Court shall 8 9 10 11 12 13 Conclusion randomly assign a district judge to this action. Further, IT IS HEREBY RECOMMENDED that: 1. The complaint, ECF No. 1, be dismissed without leave to amend for failure to state a potentially cognizable claim. 2. Plaintiff’s motions to proceed in forma pauperis, ECF No. 5, for appointment of counsel, ECF No. 6, and for issuance of summonses, ECF No. 7, be denied as moot. 14 3. The Clerk of Court be directed to close this case. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 17 after being served with these findings and recommendations, plaintiff may file written objections 18 with the court. Such document should be captioned “Objections to Magistrate Judge’s Findings 19 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 20 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 21 (9th Cir. 1991). 22 DATED: December 27, 2017 23 24 25 26 27 28 5
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