McCain v. Palmer et al, No. 2:2010cv01251 - Document 4 (D. Nev. 2010)

Court Description: ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk shall send a copy of this order to the attention of Chief of Inmate Services for the Nevada Department of Prisons. IT IS FURTHER ORDERED that the plaintiff's Fo urteenth Amendedment due process claims are DISMISSED. IT IS FURTHER ORDERED that the plaintiff's Eighth Amendment claims are DISMISSED. IT IS FURTHER ORDERED that 2 Plaintiff's Amended Complaint is DISMISSED with leave to amend his Four teenth Amendment claim. Amended complaint due 30 days from the date that this order is entered. IT IS FURTHER ORDERED that 3 Plaintiff's Motion to Appoint Counsel is DENIED. Clerk shall send plaintiff a blank complaint form with instructions along with one copy of the original complaint. Signed by Judge Gloria M. Navarro on 11/12/10. (Copies have been distributed pursuant to the NEF -cc: plaintiff - EDS)
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McCain v. Palmer et al Doc. 4 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 AARON MCCAIN #1034185 6 Plaintiff, 7 vs. 8 E. PALMER, et al., 9 Defendants. ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-01251-GMN-LRL ORDER 10 11 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s 12 application to proceed in forma pauperis is granted (docket #1). Plaintiff submitted a complaint on July 13 27, 2010 (docket #1-1) and an amended complaint on August 19, 2010 (docket #2). Plaintiff also filed 14 a motion for appointment of counsel (docket #3). 15 I. Plaintiff’s Motion for Appointment of Counsel 16 Plaintiff has filed a motion seeking the appointment of counsel in this case (docket #3). 17 A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth 18 v. Spellman, 654 F.2d 1349, 13253 (9th Cir. 1981). In very limited circumstances, federal courts are 19 empowered to request an attorney to represent an indigent civil litigant. The circumstances in which a 20 court will make such a request, however, are exceedingly rare, and the court will make the request under 21 only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 22 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 23 A finding of such exceptional circumstances requires that the court evaluate both the 24 likelihood of success on the merits and the plaintiff’s ability to articulate his claims in pro se in light of 25 the complexity of the legal issues involved. Neither factor is dispositive, and both must be viewed 26 together in making a finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn, 1 supra, 789 F.2d at 1331). The district court has considerable discretion in making these findings. The 2 court will not enter an order directing the appointment of counsel; plaintiff’s motion is denied. 3 4 The court now reviews the amended complaint (docket #2). II. Screening Standard 5 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a 6 prisoner’s claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” 7 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who 8 is immune from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an 9 arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, 10 therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or 11 where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a 12 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson 13 v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 14 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 15 provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 16 Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under 17 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 18 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 19 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief 20 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 21 (2007). “The pleading must contain something more...than...a statement of facts that merely creates a 22 suspicion [of] a legally cognizable right of action.” Id. In reviewing a complaint under this standard, the 23 court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital 24 Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and 25 resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 26 Allegations in a pro se complaint are held to less stringent standards than formal 2 1 pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 2 519, 520-21 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 3 Cir. 1990). All or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the 4 prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal 5 conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of 6 infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual 7 allegations (e.g. fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever 8 v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Moreover, “a finding of factual frivolousness is appropriate 9 when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are 10 judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). 11 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 12 complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint 13 that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 14 (9th Cir. 1995). 15 To sustain an action under section 1983, a plaintiff must show (1) that the conduct 16 complained of was committed by a person acting under color of state law; and (2) that the conduct 17 deprived the plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 689 18 (9th Cir. 2006). 19 III. Instant Complaint 20 Plaintiff, who is incarcerated at High Desert State Prison (“HDSP”), has sued HDSP 21 Warden Anthony M. Scillia, Assistant Warden of Operations (“AWO”) Jeffrey Patterson, acting 22 Assistant Warden of Programs (“AWP”) Jennifer Nash, laundry room supervisor E. Palmer and Does 23 1and 2 unit case workers. Plaintiff claims that when his boots fell apart, Palmer would only issue him 24 re-used boots, which he refused “for health and safety reasons.” Plaintiff states that Scillia, Patterson, 25 and Nash denied his grievances. He claims that defendants have violated his Eighth Amendment rights 26 as well as his Fourteenth Amendment due process and equal protection rights. 3 1 At the outset, the court notes that, “Where a particular amendment ‘provides an explicit 2 textual source of constitutional protection’ against a particular sort of government behavior, ‘that 3 Amendment, not the more generalized notion of “substantive due process,” must be the guide for 4 analyzing [a plaintiff's] claims’.” Albright v. Oliver, 510 U.S. 266, 273-74 (1994) (Rehnquist, C.J., for 5 plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Therefore, plaintiff’s claims will be 6 analyzed under the Eighth Amendment right to be free from cruel and unusual punishment rather any 7 generalized notions of substantive due process under the Fourteenth Amendment, and his Fourteenth 8 Amendment due process claim must be dismissed. 9 With respect to his Eighth Amendment allegations, the Eighth Amendment prohibits the 10 imposition of cruel and unusual punishments and “embodies broad and idealistic concepts of dignity, 11 civilized standards, humanity and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). “After 12 incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual 13 punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 14 1084, 89 L.Ed.2d 251 (1986) (internal quotations omitted). In order to meet the wantonness standard 15 in a conditions of confinement case, “the inmate must show that the prison officials were deliberately 16 indifferent to [his] suffering.” Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.1993) (en banc). 17 While “[t]he Constitution does not mandate comfortable prisons” (Farmer v. Brennan, 511 U.S. 825, 18 832 (1994), the denial of adequate clothing can inflict pain under the Eighth Amendment. Hoptowit v. 19 Ray, 682 F.2d 1237, 1246 (9th Cir.1982). However, plaintiff does not allege that the denial of new boots 20 instead of re-used boots caused him to suffer pain; he merely asserts that he rejected the re-used boots 21 as unsanitary. Plaintiff’s allegations fail to state a claim of cruel and unusual punishment in violation 22 of the Eighth Amendment. 23 Finally, plaintiff claims that other inmates were issued new boots, which he asserts 24 violates his Fourteenth Amendment right to equal protection. “Prisoners are protected under the Equal 25 Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” Wolff 26 v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners are also protected by the Equal Protection Clause 4 1 from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 2 (9th Cir. 1997). To establish a violation of the Equal Protection Clause, the prisoner must present 3 evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-40 (1976). Plaintiff’s 4 claims here are vague, and the court is unable to determine if he states an equal protection claim. 5 Because his allegations may implicate his equal protection rights, however, he has leave to file an 6 amended complaint. 7 If plaintiff elects to proceed in this action by filing an amended complaint, he is advised 8 that he should specifically identify how his equal protection rights have been violated, and support each 9 claim with factual allegations about each defendant’s actions. There can be no liability under 42 U.S.C. 10 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the claimed 11 deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 12 Johnson, 588 F.2d at 743. Plaintiff’s claims must be set forth in short and plain terms, simply, concisely 13 and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Fed. R. Civ. P. 8. 14 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 15 plaintiff’s amended complaint complete. Local Rule 15-1 requires that an amended complaint be 16 complete in itself without reference to any prior pleading. This is because, as a general rule, an amended 17 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once 18 plaintiff files an amended complaint, the original pleading no longer serves any function in the case. 19 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each 20 defendant must be sufficiently alleged. 21 IV. Conclusion 22 IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma 23 pauperis (docket #1) without having to prepay the full filing fee is GRANTED; plaintiff shall not be 24 required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 25 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. The movant herein is 26 permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or 5 1 the giving of security therefor. This order granting in forma pauperis status shall not extend to the 2 issuance of subpoenas at government expense. 3 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 4 Prisoner Litigation Reform Act of 1996, the Nevada Department of Corrections shall pay to the Clerk 5 of the United States District Court, District of Nevada, 20% of the preceding month’s deposits to the 6 account of Aaron McCain, Inmate No. 1034185 (in months that the account exceeds $10.00) until the 7 full $350 filing fee has been paid for this action. The Clerk shall send a copy of this order to the 8 attention of Albert G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 9 7011, Carson City, NV 89702. 10 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 11 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the 12 Prisoner Litigation Reform Act of 1996. IT IS FURTHER ORDERED that plaintiff’s Fourteenth Amendment due process 13 14 claims are DISMISSED. IT IS FURTHER ORDERED that plaintiff’s Eighth Amendment claims are 15 16 17 18 19 20 DISMISSED. IT IS FURTHER ORDERED that plaintiff’s amended complaint (#2) is DISMISSED with leave to amend his Fourteenth Amendment equal protection claim as stated in this Order. IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (docket #3) is DENIED. 21 IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that 22 this Order is entered to file his second amended complaint, if he believes he can correct the noted 23 deficiencies. The amended complaint must be a complete document in and of itself, and will supersede 24 the original complaint in its entirety. Any allegations, parties, or requests for relief from prior papers 25 that are not carried forward in the second amended complaint will no longer be before the court. 26 IT IS FURTHER ORDERED that plaintiff shall clearly title the amended complaint 6 1 as such by placing the words “SECOND AMENDED” immediately above “Civil Rights Complaint 2 Pursuant to 42 U.S.C. § 1983” on page 1 in the caption, and plaintiff shall place the case number, 2:10- 3 CV-01251-GMN-RJJ, above the words “SECOND AMENDED”in the space for “Case No.” 4 IT IS FURTHER ORDERED that plaintiff is expressly cautioned that if he does not 5 timely file an amended complaint in compliance with this order, this case may be immediately 6 dismissed. 7 8 9 IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank section 1983 civil rights complaint form with instructions along with one copy of the original complaint. DATED this _____ day of November, 2010. 12th 10 11 12 Gloria M. Navarro United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7