Warren v. Parsons
| Decision Date | 09 August 2021 |
| Docket Number | 3:20-cv-00405-JAH-JLB |
| Parties | THOMAS WARREN, CDCR #P-60052, Plaintiff, v. C/O PARSONS, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER: (1) DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL [ECF No. 14] AND (2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b)(1)
Plaintiff Thomas Warren, incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego California, is proceeding pro se and in forma pauperis (“IFP”), in this civil rights action pursuant to 42 U.S.C. § 1983.
In his original Complaint, Warren claimed RJD Correctional Officers P. Parsons and John Doe #1, Sgt. C. Godinez, Correctional Counselors E. Aukerman and L. Garnica, Warden D. Paramo, Associate Warden J. Juarez, and an unidentified John/Jane Doe inmate appeals official violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights when they searched his cell on March 5, 2018, left it in disarray, confiscated his personal property, and thereafter conspired to coverup the wrongdoing by denying his inmate appeals. See Compl., ECF No. 1 at 2-14.
On July 6, 2020, the Court granted Warren leave to proceed IFP, but simultaneously screened and dismissed his Complaint sua sponte for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See ECF No. 7. Specifically, the Court dismissed Warren's Fourth Amendment claims because he “has no expectation of privacy in his prison cell, ” see Id. at 6 (citing Hudson v. Palmer, 468 U.S. 517, 525-26 (1984)), his Fifth Amendment due process claims because he alleged violations by state, and not federal actors, id. at 7 n.3 (citing Castillo v. McFadden, 370 F.3d 882, 889 n.5 (9th Cir. 2004)), his Eighth Amendment claims because he failed to allege any facts sufficient to show the confiscation of his personal property deprived him of “the minimal civilized measure of life's necessities, ” id. at 6 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), his Fourteenth Amendment claims because California provides an adequate post-deprivation remedy for negligent or intentional deprivations of personal property sufficient to satisfy due process, id. at 7‒8 (citing Barnett v. Centoni, 31 F.3d 813, 816‒17 (9th Cir. 1994)), his conspiracy claims because he failed to allege any of the Defendants entered into any express or implied agreement to violate his constitutional rights, id. at 8 (citing Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010)), and his claims against RJD's inmate appeals officials because the denial of an administrative grievance, without more, cannot serve as a basis for § 1983 liability. Id. at 8‒9 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)). The Court also granted Warren leave to file an Amended Complaint, advised his failure to include any Defendant or claim would constitute waiver, and warned that if he failed to fix his pleading deficiencies, the case would be dismissed in its entirety. See Id. at 10 (citing Lacey v. Maricopa Cnty, 693 F.3d 896, 928 (9th Cir. 2012); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)).
Warren has since filed a First Amended Complaint (“FAC”), which re-names Defendants Paramo, Parsons, and Juarez, omits Defendants John Doe #1, Godinez, Aukerman, Garnica, and John/Jane Doe, and adds the California Department of Corrections and Rehabilitation (“CDCR”), former CDCR Secretary M. Cate, CDCR Director of Adult Institutions C. Gipson, RJD Captain E. Garza, RJD Sgts. D. Hampton and Vanderwered, and Does 1-25 as Defendants. See FAC, ECF No. 12 at 1, 6‒9.
Warren's Amended Complaint contains even fewer factual allegations than his original Complaint, but he continues to claim Defendants, “each and every one, act[ed] under color of state law to depriv[e] him” of his personal and intellectual property in violation of the First and Fourteenth Amendments.[1] See FAC at 11‒14. The primary focus of his Amended Complaint, however, centers on state law causes of action including allegations of criminal theft, fraud, embezzlement, and conversion. Id. at 17‒ 19, 23‒28. Warren also asserts multiple violations of intentional infliction of emotional distress and breaches of contract, fiduciary duty, and the covenant of good faith and fair dealing under state tort law. Id. at 19‒23. He seeks $1, 098, 748 in both compensatory and punitive damages. Id. at 32. Warren has also filed a Motion to Appoint Counsel. See ECF No. 14.
Warren first seeks the appointment of counsel pursuant to Cal. Penal Code § 2601(d) and Smith v. Ogbuehi, 38 Cal.App. 5th 453 (2019), reh 'g denied (Aug. 28, 2019) (Cal.Ct.App. 5th Dist. 2019). See ECF No. 14 at 1‒4.
Smith is a non-binding California Court of Appeal decision, however, that discusses the state court's discretion to appoint counsel to a civil litigant in California court proceedings. See Smith, 38 Cal.App. 5th at 468‒69. And while it requires California courts to consider similar factors, even Smith notes that the appointment of counsel in a federal civil action is governed by 28 U.S.C. § 1915. Id. at 469‒470 (“It follows that the relevant circumstances include, without limitation, the factors listed in the federal decisions for determining whether exceptional circumstances exist in a particular case.”) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)).
“[T]here is ‘no constitutional right to counsel in a civil case.'” Adir Int 'l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1038-39 (9th Cir. 2021) (quoting United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., Washington, 795 F.2d 796, 801 (9th Cir. 1986) (cleaned up)). “Unlike in criminal cases that implicate the Sixth Amendment right to counsel, civil litigants who cannot afford counsel are not constitutionally guaranteed the appointment of a lawyer.” Id. Instead, Title 28, section 1915(d) provides that “[t]he court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1).
While Warren has been granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a), and is proceeding pro se, none of the facts alleged in either his original Complaint or his FAC suggest that this is a case that demands the Court to exercise its limited discretion to request an attorney to represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1). 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, 935 F.3d at 1017; 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, Warren's FAC demonstrates that while he may not be formally trained in law, he nevertheless is 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 explained below, Warren has not shown he is likely to succeed on the merits. Therefore, the Court DENIES his Motion for Appointment of Counsel (ECF No. 14).
As Warren now knows, the Prison Litigation Reform Act (“PLRA”) requires the Court to review complaints filed by all persons proceeding IFP and by those, like him, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program, ” at the time of filing “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 112, 1126-27 (9th Cir. 2000) (en banc) (citing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of § 1915A 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) (citation omitted)). “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); accord Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) ().
Every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity, and then...
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