Edwards Family et al v. Clark County et al, No. 2:2012cv01530 - Document 4 (D. Nev. 2012)
Court Description: ORDER Denying 1 Motion to Appoint Counsel. IT IS FURTHER ORDERED that 2 and 3 Motions/Application for Leave to Proceed in forma pauperis are Denied without prejudice. Payment of filing fee or completed application within 30 days of this Order. IT IS FURTHER ORDERED that all claims asserted by the plaintiff Edwards Family are DISMISSED without prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall change the address for plaintiff Carl D. Edwards to the address and back number as s tated in docket number 3-2. Clerk shall send a copy of this Order and 2 copies of a blank application form to proceed in forma pauperis. Signed by Judge Miranda M. Du on 11/14/2012. (Copies have been distributed pursuant to the NEF - cc: Plaintiff Carl D. Ewards at High Desert State Prison and Plaintiff Edwards Family - SLD)
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Edwards Family et al v. Clark County et al Doc. 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 EDWARDS FAMILY, Case No. 2:12-cv-01530-MMD-PAL 10 Plaintiff, 11 12 ORDER v. CLARK COUNTY, et al., 13 Defendants. 14 15 This civil rights action filed by a Nevada state inmate comes before the Court on 16 plaintiff Carl D. Edwards’ two applications (dkt. nos. 2 & 3) to proceed in forma pauperis 17 and his motion for appointment of counsel (dkt. no. 1), as well as on consideration of 18 claims styled as being presented by the “Edwards Family.” 19 I. PAUPER APPLICATIONS 20 The two pauper applications are both incomplete and deficient. 21 Although Edwards provided different “in care of” addresses with his initial filing, it 22 is clear that he has been in custody at all times relevant to consideration of the 23 procedural requirements for establishing pauper status under the Prisoner Litigation 24 Reform Act (PLRA), including when he mailed the first pauper application for filing on or 25 about July 31, 2012. 26 Edwards attached inmate store receipts from the Clark County Detention Center 27 in a deficient effort to demonstrate that he did not have sufficient funds to pay the filing 28 fee. Review of the online docket records of the Nevada Eighth Judicial District Court Dockets.Justia.com 1 further confirms that Edwards had been in custody continuously since at least on or 2 about April 16, 2012, as well as during an interval prior to that. On April 30, 2012, 3 Edwards pled guilty in No. C-11-274602 to the felony of battery with substantial bodily 4 harm, and he was sentenced on October 15, 2012, to 24 to 60 months in state custody. 5 Meanwhile, in C-12-282585, Edwards was arraigned on July 19, 2012, while in custody, 6 on felony charges of aggravated stalking. Trial on those charges is currently set for 7 January 8, 2013. 8 Further, Edwards referred within the body of a cover letter (dkt. no. 3-2) to his 9 having been transferred to state custody at the High Desert State Prison (“High 10 Desert”). It is thus clear that Edwards has been in custody at all times material to 11 12 consideration of application of the requirements of the PLRA to his pauper applications. 13 Under these circumstances, both pauper applications are deficient. Both a fully 14 executed financial certificate and an inmate account statement for the six months 15 preceding the application are required by 28 U.S.C. § 1915(a)(2) and Local Rule LSR1- 16 2. 17 On the first application, Edwards did not attach a financial certificate. Moreover, 18 the inmate store receipts attached with the application do not constitute an inmate 19 account statement for the preceding six months. Store receipts showing purchases and 20 a running trust account balance do not constitute such an account statement, and such 21 receipts do not provide all of the pertinent information reflected in an account statement. 22 On the second application, submitted at a time when he was at High Desert, 23 Edwards attached a financial certificate with amounts written in some of the blanks, and 24 with a date from several months before of July 14, 2012. 25 executed by an appropriate institutional officer, of any institution, nor was the filing fee 26 information filled in. Further, Edwards did not attach an inmate account statement, from 27 any institution. 28 /// 2 The certificate was not 1 Both applications therefore will be denied without prejudice to the filing of a new 2 and properly-completed application with all required – and current – financial 3 attachments. 4 II. MOTION FOR APPOINTMENT OF COUNSEL 5 Turning to the motion for appointment of counsel, there is no constitutional right 6 to appointed counsel in a § 1983 action. E.g., Rand v. Rowland, 113 F.3d 1520, 1525 7 (9th Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 8 1998)(en banc). The provision in 28 U.S.C. § 1915(e)(1), however, gives a district court 9 the discretion to request that an attorney represent an indigent civil litigant. See,e.g., 10 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); 28 U.S.C. § 1915(e)(1) 11 ("The court may request an attorney to represent any person unable to afford 12 counsel."). Yet the statute does not give the court the authority to compel an attorney to 13 accept appointment, such that counsel remains free to decline the request. See Mallard 14 v. United States District Court, 490 U.S. 296 (1989). While the decision to request 15 counsel is a matter that lies within the discretion of the district court, the court may 16 exercise this discretion to request counsel only under "exceptional circumstances." 17 E.g., Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 18 circumstances requires an evaluation of both the likelihood of success on the merits and 19 the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal 20 issues involved. Id. Neither of these factors is determinative and both must be viewed 21 together before reaching a decision. Id. The Court does not find that exceptional circumstances warrant requesting a 22 23 private attorney to voluntarily represent plaintiff in this matter. Cf. Mallard, supra. 24 Given that plaintiff Edwards ostensibly seeks to assert claims for other family 25 members, the Court will discuss the claims presented in some depth to reflect why there 26 is little likelihood of success on the merits of the claims presented. 27 discussion is preliminary to a full and definitive screening of the pleadings, which does 28 /// 3 The Court’s 1 not occur until an action properly has been commenced by either payment of the filing 2 fee or grant of pauper status on a properly-completed pauper application. 3 4 The Court discusses Count II first, as the discussion of this claim provides context for discussion of the remaining claims. 5 In Count II, Edwards seeks the release of his son from juvenile custody. 6 Edwards alleges that his son, K.E., has been held in juvenile custody beyond his 7 eighteenth birthday on December 3, 2010. Even assuming arguendo that Edwards as a 8 lay family member could pursue the legal rights of his now-major son in this type of 9 proceeding, a federal civil rights action seeking the son’s release would appear to be 10 barred by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, an inmate who seeks 11 to bring a § 1983 claim that necessarily implies the unlawfulness of his custody first 12 must establish that the confinement has been declared invalid by a state tribunal 13 authorized to make such a determination, expunged by executive order, or called into 14 question by the grant of a federal writ of habeas corpus. 512 U.S. at 486-87. Edwards 15 refers to an alleged October 27, 2011, family court hearing in which a judge allegedly 16 ordered that the county’s jurisdiction be terminated upon K.E. being eighteen years old. 17 However, the construction, application and/or enforcement of any such order would 18 appear to be a matter to be addressed in the state courts through proper procedural 19 avenues through to possible review by the Supreme Court of Nevada. It thus appears 20 unlikely that Count II states a claim upon which relief may be granted at this time. 21 Turning then back to Count I, Edwards alleges that the defendants have 22 discriminated against him by not allowing him to visit his son in juvenile custody. 23 Edwards alleges that the defendants have discriminated against him in violation of, inter 24 alia, the First Amendment, the Equal Protection Clause and the Americans with 25 Disabilities Act (ADA). He asserts that he has been discriminated against “because of 26 our beliefs in Equal Protection . . . and the right to raise our children as we choose” and 27 “simply because he is a biker and a civil rights advocate.” He maintains that he has not 28 been allowed to visit with K.E. in the same fashion as his late wife was allowed to visit 4 1 him. He alleges that he has not been allowed to take K.E. out to eat lunch, to play 2 baseball, to see a movie, to take him to the mall to buy clothes, or to leave the property 3 at all allegedly like other parents are allowed to do. Edwards maintains that his son has 4 been moved to another location in order to prevent his being able to communicate with 5 him. Plaintiff refers to being able to show unlawful action by defendants on a motion for 6 summary judgment after discovery. 7 The majority of Count I fails on its face to state a claim upon which relief may be 8 granted. Bikers are not a suspect class subject to heightened protection under the 9 Equal Protection Clause. Conclusory allegations that one is being discriminated against 10 because he is a “civil rights advocate” or because of beliefs in equal protection and the 11 right to raise one’s children do not state a claim. Nor are there any facts alleged in the 12 complaint that plausibly would state a claim for relief under the ADA. A plaintiff must do 13 more than present bare formulaic allegations raising only a possibility of unlawful 14 conduct. 15 In this same vein, a plaintiff may not rely upon the proposition that the supporting 16 facts will be developed during discovery and/or presented on a motion for summary 17 judgment or at trial. 18 complaint itself to state a claim upon which relief may be granted. Rather, plaintiff must present allegations of actual fact in the 19 The only possibly viable claim implicated in Count I, at least in theory, would be 20 based upon alleged unwarranted interference with the family relationship between 21 Edwards and his son in violation of substantive due process of law. 22 In conducting a preliminary assessment of the likelihood of success on the merits 23 of such a claim in connection with the counsel motion, however, the Court does not 24 ignore the following. For a substantial portion of the time period referenced in the 25 complaint, Edwards himself was in federal custody in another part of the country 26 following upon his conviction in this Court for being a felon in possession of a firearm. 27 He was on supervised release at one point, but he was remanded to custody following 28 violations of the conditions of his release and a preliminary detention finding that 5 1 Edwards represented both a danger to the community and a risk of flight. He ultimately 2 was released from federal custody again on or around July 10, 2010. 1 Moreover, as 3 discussed above, supra, Edwards thereafter has been in state custody nearly 4 continuously from in or around July 7, 2011, through the present. He has been in state 5 custody on sundry felony charges, culminating in one case in a conviction for the felony 6 of battery with substantial bodily harm and with felony aggravated stalking charges 7 pending in another case as to which he currently is awaiting trial. The only interval 8 during that time period in which he was not in state custody concluded with his arrest on 9 a bench warrant issued after he failed to appear for a court proceeding. 10 Accordingly, it would appear that Edwards has not been able to visit his son 11 during much of the period in question because he himself has been in federal or state 12 custody. For the intervals when he was not himself incarcerated, it is hardly 13 inconceivable that the defendants possibly might have a justifiable basis for placing 14 restrictions on the range of visitation rights authorized for a felon not only with multiple 15 felony convictions but who has been adding to the list of felony charges and convictions 16 during the time period in question, along with indicia that he presents a flight risk. For 17 example, it is not implausible that the defendants might have a valid basis for not 18 allowing Edwards to take his son outside the facility “like other parents are allowed to 19 do,” given his still-growing list of state and federal felony charges and convictions and 20 flight risk indicia. 21 Particularly given the bare and conclusory allegations of actual fact in Count I, 22 and subject to possible amendment if and after the action has been properly 23 commenced on a properly-completed pauper application, it further does not appear, 24 given the state and federal judicial records available to the Court, that there is a 25 likelihood of success on the claim. 26 27 28 1 See No. 2:05-cr-00154-KJD-LRL, ## 136-154; #188, at 2; see also No. 2:10-cv-00973RLH-GWF. 6 1 In Count III, plaintiff alleges a denial of equal protection and due process of law 2 for alleged intentional infliction of emotional distress based upon the alleged unlawful 3 incarceration of K.E., restriction of Edwards’ visitation rights as to his son, the family 4 having been forced out of a Henderson, Nevada home, all of the family’s vehicles being 5 impounded in 2010 and 2011, and Edwards allegedly having been harassed and falsely 6 accused by the Henderson Police Department multiple times. The claim based upon the alleged unlawful incarceration of K.E. does not appear 7 8 to present a viable claim for the reasons discussed as to Count II, supra. 9 The claim based upon restriction on Edwards’ visitation rights does not appear at 10 this juncture to have a likelihood of success for the reasons discussed as to Count I, 11 supra. 12 The claims concerning allegedly being forced from a home, vehicle 13 impoundments and police harassment do not present viable claims against any of the 14 defendants actually named in the complaint, who are defendants allegedly linked in one 15 capacity or another to the juvenile detention and visitation situation. These claims, 16 accordingly, do not present potentially viable claims against the named defendants even 17 if the Court were to assume, arguendo, that the circumstances alleged otherwise would 18 give rise to viable civil rights claims for intentional infliction of emotional distress, that 19 other family members would have viable claims based upon the circumstances alleged, 20 and that Edwards as a lay family member could assert such claims. 21 It thus appears at this juncture that there is little, if any, likelihood of success on 22 the merits of the claims presented, subject to further screening review following 23 payment of the filing fee or grant of pauper status on a proper application. 24 25 It further appears that Edwards is sufficiently capable of articulating the claims presented, which are not unduly complex. 26 Viewing both factors in conjunction, the Court does not find that exceptional 27 circumstances warrant requesting a private attorney to voluntarily represent plaintiff in 28 this matter. 7 The motion for appointment of counsel therefore will be denied.2 1 2 III. The “Edwards Family” is not a juridical entity that can sue or be sued. Suit by the 3 4 EDWARDS FAMILY CLAIMS “Edwards Family” does not present justiciable claims. 5 Moreover, the non-attorney Edwards may not pursue the matter pro se on behalf 6 of other family members, whether individually or in globo. See,e.g., Johns v. City of San 7 Diego, 114 F.3d 874, 876-77 (9th Cir. 1997). In this regard, the Court has reviewed the 8 allegations of the complaint, and exceptional circumstances do not warrant requesting a 9 private attorney to voluntarily act as counsel in this matter. The claims do not have a 10 likelihood of success on the merits and instead would appear, subject only to further 11 screening and possibly an opportunity for amendment as to Count II regarding Edwards 12 himself, to constitute baseless claims. The Court, accordingly, will dismiss all claims by the “Edwards Family” as a 13 14 plaintiff without prejudice. 15 IV. REMAINING MATTERS 16 The Court by mere happenstance came upon a statement regarding a change of 17 address embedded in a long cover letter. Under Local Rule LSR 2-2, plaintiff must 18 provide the Court with immediate written notification of a change of address. Plaintiff 19 must do so in a separate notice of change of address, not embedded in another filing. 20 Further, it is plaintiff’s responsibility to provide full and correct information, including his 21 back number. 22 Plaintiff refers in the letter to the conform copy of his complaint being returned 23 with “a generic – unofficial stamp, as filed, but with no clerk signature.” Plaintiff then 24 sent the complaint to a judge of this Court. He now has submitted a second pauper 25 application and another complaint. What plaintiff received back the first time represents 26 how pro se hard copy filings and conform copies are stamped by the Clerk upon filing of 27 28 2 In reviewing the allegations of the pleadings, the Court does not imply by silence that the papers presented are not subject to additional deficiencies. 8 1 the original. Plaintiff should not continue to send further copies of the same filing to 2 judges of the Court and/or the Clerk. Plaintiff should leave the clerical details of how to 3 file papers and return conformed copies to the Clerk’s Office, which is following proper 4 procedure in this regard. Further, this Court has a heavy docket, and the Court is not 5 always able to reach matters within sixty days of their filing. If plaintiff receives back a 6 file-stamped copy like he received the first time, the matter has been filed, and it is 7 under submission pending the Court’s being able to address filings in other longer- 8 pending cases and reach this particular matter. 9 Finally, juvenile proceedings are confidential, including after the juvenile allegedly 10 reaches majority. Plaintiff shall refer herein to his son as “K.E.” rather than by his name. 11 IT IS THEREFORE ORDERED that the applications to proceed in forma 12 pauperis (dkt. nos. 2 & 3) are DENIED without prejudice. This action will be dismissed 13 without further advance notice unless plaintiff either pays the $350.00 filing fee or 14 submits a new and properly completed application within thirty (30) days of entry of this 15 order. IT IS FURTHER ORDERED that the motion for appointment of counsel (dkt. no. 16 17 1) is DENIED. IT IS FURTHER ORDERED that all claims asserted by the plaintiff “Edwards 18 19 Family” are DISMISSED without prejudice. 20 IT IS FURTHER ORDERED that the Clerk of Court shall change the address for 21 plaintiff Carl D. Edwards to the address and back number as stated in dkt. no. 3-2. It is 22 the responsibility of the plaintiff to provide a full and complete address for inmate legal 23 correspondence in a separate written notice of change of address. IT IS F RTHER ORDERED that the Clerk after changing plaintiff Carl D. 24 25 Edwards’ address on the docket as directed above 26 /// 27 /// 28 /// 9 shall SEND plaintiff a copy of this 1 order and two (2) copies of a blank application form to proceed in forma pauperis for 2 incarcerated persons, together with the instructions for same. 3 4 DATED THIS 14th day of November 2012. 5 6 7 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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