Dunsmore v. California
| Decision Date | 04 August 2020 |
| Docket Number | Case No.: 3:20-cv-00406-AJB-WVG |
| Court | U.S. District Court — Southern District of California |
| Parties | DARRYL DUNSMORE, Inmate Booking No. 19777041, Plaintiff, v. STATE OF CALIFORNIA; SAN DIEGO COUNTY; SAN DIEGO SHERIFF'S DEP'T; DEPARTMENT OF CORRECTIONS; GORE XAVIER BECCERA; ATTORNEY GENERAL, Defendants. |
(1) DENYING MOTION FOR CIVIL CONTEMPT, MOTION TO APPOINT COUNSEL, AND MOTION FOR TEMPORARY RESTRAINING ORDER; AND
On March 2, 2020, Darryl Dunsmore ("Plaintiff"), currently housed at the San Diego Central Jail located in San Diego, California, and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (See ECF No. 3.)
On April 6, 2020, the Court GRANTED Plaintiff's Motion to Proceed IFP and simultaneously DISMISSED his Complaint for failing to state a claim upon which relief could be granted. (See ECF No. 4.) Plaintiff was granted leave to file an amended pleading in order to correct the deficiencies of pleading identified in the Court's Order. (See id.)
On July 1, 2020, Plaintiff filed his First Amended Complaint ("FAC"). (See ECF No. 11.) In addition, to his FAC, Plaintiff submitted a declaration from Ken Karan1, an attorney who declares that he personally met with Plaintiff on April 21, 2020. (See id., ECF No. 11 at 18.) Karan declares that Plaintiff asked him to mail an amended pleading in this matter on his behalf and he "personally put the amended complaint in an envelope and mailed it to this Court with first class postage pre-paid" on or about April 22, 2020. (Id.) However, he notes that a review of the Court's docket indicates that the amended complaint had not been filed. (Id.)
On July 17, 2020, Ken Karan submitted a second declaration in which he indicates that he was "wrong" in his previous declaration and in fact, he had not previously mailed Plaintiff's amended pleading which he recently discovered while "moving file boxes." (Karan Decl, ECF No. 13 at 1.) Karan attaches as an exhibit the "true and correct original of the amended complaint Mr. Dunsmore is attempting to file." (Id. at 2.) Attached to Karan's second declaration was also a "Motion for Civil Contempt," "Motion for Appointment of Counsel," "Motion for Temporary Restraining Order and Preliminary Injunction," and "First Amended Complaint." (Id. at 3-26.)
On July 17, 2020, Plaintiff filed a motion to strike the amended complaint filed on July 1, 2020 and requested that the Court file the First Amended Complaint ("FAC") attached to Karan's second declaration. The Court GRANTED Plaintiff's Motion and directed the Clerk of Court to strike the amended complaint filed on July 1, 2020.
The Clerk of Court was directed to file Plaintiff's FAC, see ECF No. 13 at 17-36, Motion for Civil Contempt, see ECF No. 13 at 3-4, Motion for Appointment of Counsel, see ECF No. 13 at 5-6, and Motion for Temporary Restraining Order and Preliminary Injunction, see ECF No. 13 at 7-16 as separate entries in the Court's docket.
All documents filed pro se are liberally construed, and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no constitutional right to counsel in a civil case; and Plaintiff's FAC does not demand that the Court exercise its limited discretion to request than an attorney represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Only "exceptional circumstances" support such a discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist where there is cumulative showing of both a likelihood of success on the merits and a demonstrated inability of the pro se litigant to articulate his claims in light of their legal complexity. Id.
As currently pleaded, Plaintiff's FAC demonstrates that while he may not be formally trained in law, he nevertheless is fully capable of legibly articulating the facts and circumstances relevant to his claims, which are typical and not legally "complex." Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet to show he is likely to succeed on the merits of the claims. Therefore, the Court DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 21).
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Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
"The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" or "unadorned, the defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff claims that the "State of California and the County of San Diego have established policy or law which violates Plaintiff's right to medical care" when his "ADA appliances were confiscated" when he was transferred to the San Diego Central Jail. (FAC at 5.) Plaintiff was placed in an "isolation cell" because he is "on auto immune suppression therapy" and is "totally disabled due to Ankylosing Spondylitis and Parkinson's." (Id.)
Plaintiff's cell contained a shower, which is required due to a "medical directive and chronos," but "employees under the supervision of Bill Gore" have failed to "repair or maintain said shower." (Id.) Plaintiff claims using "public restrooms and showers" could "jeopardize Plaintiff's auto immune suppression therapy." (Id. at 6.)
Plaintiff alleges that upon "arrival at San Diego County Jail [his] ADA appliances were confiscated and only [his] eating spoon was provided." (Id.) Plaintiff claims that he used this "ADA spoon to prepare items to safely eat" because Plaintiff has a medical condition that puts him at "risk of choking on food." (Id.) However, Plaintiff broke this spoon and "was forced to eat like an animal for at least 30 days because Plaintiff could not replace [his] spoon." (Id. at 7.) Plaintiff alleges that he "ended up choking on [his] food" and was found on his cell floor by "staff" who told Plaintiff that if he "did that again they would put [him] on suicide watch." (Id.) Plaintiff claims "they finally placed an order" to replace his spoon and other "hand appliances." (Id.)
Plaintiff also claims he was denied access to the courts when "17 boxes of litigation" he brought with him upon his transfer to the San Diego Central Jail were "confiscated" when he arrived at the jail. (Id. at 10.) As a result, Plaintiff alleges he wasunable to pursue his "collateral attack" on his underlying criminal sentence. (Id.) Plaintiff also claims that the attorney assigned to him by the Office of Assigned Counsel was "ineffective." (Id. at 15.)
Plaintiff seeks injunctive relief, $60,000,000 in compensatory damages, and $60,000,000 in punitive damages. (Id. at 36.)
Section 1983 is a "vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, ...
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