# (PC) Uhuru v. Singh > District Court, E.D. California · October 9, 2020 URL: https://www.frixlaw.com/law-library/cases/10022681 ## Case - **Court:** District Court, E.D. California - **Decided:** October 9, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10022681 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, No. 2: 20-cv-1664 TLN KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 R. SINGH, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. On September 17, 2020, the undersigned recommended that plaintiff’s 20 application to proceed in forma pauperis be denied on the grounds that plaintiff had three strikes 21 pursuant to 28 U.S.C. § 1915(g). (ECF No. 8.) The undersigned also found that plaintiff did not 22 meet the “imminent danger” exception to 28 U.S.C. § 1915(g). (Id.) 23 On September 30, 2020, plaintiff filed objections to the findings and recommendations. 24 (ECF No. 9.) In his objections, plaintiff alleges sufficient facts demonstrating that he may meet 25 the imminent danger exception as to his claim alleging that defendant Scamurra provided 26 inadequate dental care. (Id.) Accordingly, the September 17, 2020 findings and 27 recommendations are vacated and plaintiff’s application to proceed in forma pauperis is granted. 28 However, the undersigned herein recommends dismissal of plaintiff’s remaining claims on the 1 grounds that they are improperly joined with the claim against defendant Scamurra. 2 Application to Proceed In Forma Pauperis 3 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 4 Accordingly, the request to proceed in forma pauperis will be granted. 5 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 6 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 7 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 8 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 9 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 10 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 11 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 12 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 13 § 1915(b)(2). 14 Discussion 15 Plaintiff’s Claims 16 In claim one, plaintiff alleges that he was denied his right to participate in a religious fast 17 during the months of August 2019 and August 2020 in violation of his First Amendment right to 18 practice his religion and in retaliation for requesting the removal of a Christian cross from the 19 chapel. (ECF No. 1.) 20 In claim one, plaintiff also alleges that he has been suffering from a “ruptured and torn” 21 crown since January 14, 2020. (Id.) Plaintiff alleges that due to the ruptured and torn crown, he 22 cannot chew on one side of his mouth because the torn metal cuts his tongue. (Id.) Plaintiff 23 alleges that defendant dentist Scamurra denied his emergency request for treatment of the crown. 24 (Id.) 25 In claim one, plaintiff also generally alleges that due to his documented disabilities, he has 26 been denied sunlight, fresh air and outdoor exercise. (Id.) 27 In claim two, plaintiff alleges that defendant Law Librarian Chaudrhy read plaintiff’s 28 outgoing legal mail and refused to make copies of legal documents for plaintiff. (Id.) Plaintiff 1 also alleges that defendant Brown stole plaintiff’s religious materials including a medallion and 2 prayer shawl. (Id.) 3 In claim three, plaintiff alleges that defendant Michels admitted to plaintiff that he 4 (defendant Michels) was unqualified to work as a counselor. (Id.) Plaintiff also claims that 5 defendant Michaels racially discriminated against plaintiff when defendant Michels denied 6 plaintiff’s request to speak with him during “open line,” fabricated plaintiff’s BPH forms and 7 issued a false rules violation report against plaintiff. (Id.) 8 In claim three, plaintiff also alleges that defendant Solis put plaintiff’s life in danger on 9 February 8, 2019 when she denied plaintiff’s request for a lower tier/lower bunk/single cell and 10 “coerced” plaintiff to house in an upper tier. (Id.) Plaintiff alleges that as a result of being 11 housed in the upper tier, plaintiff fell down a flight of stairs from an upper to a bottom floor. (Id.) 12 In claim three, plaintiff also alleges that defendant Singh denied plaintiff’s request for 13 permanent cell status, apparently in June 2020. (Id.) Plaintiff alleges that he requires single cell 14 status because he suffers from Post-Traumatic Stress Disorder (“PTSD”) and permanent 15 incontinence. (Id.) 16 Analysis 17 In the September 17, 2020 findings and recommendations, the undersigned found that 18 none of the allegations in plaintiff’s complaint demonstrated that he was “under imminent danger 19 of serious physical injury.” 28 U.S.C. § 1915(g). The availability of the imminent danger 20 exception turns on conditions a prisoner faced at the time the complaint was filed, not at some 21 earlier or later time. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 22 In the September 17, 2020 findings and recommendations, the undersigned observed that 23 plaintiff did not request treatment of the torn and ruptured crown in his request for relief. (ECF 24 No. 8 at 4.) Plaintiff also did not allege that he suffered any significant pain as a result of his torn 25 and ruptured crown. (Id.) The undersigned found that plaintiff’s allegations that he must chew 26 on one side of his mouth due to the torn and ruptured crown demonstrated that eating with the 27 broken crown was uncomfortable, but did not meet the imminent danger exception to section 28 1915(g). (Id.) 1 In his objections, plaintiff alleges that he suffers from continuous pain and suffering due 2 to the lack of dental treatment for his torn and ruptured crown. (ECF No. 9 at 10.) Plaintiff 3 alleges that his molar with the torn and ruptured crown is now infected. (Id.) Plaintiff alleges 4 that he was told that no dental services were available due to COVID-19. (Id.) 5 The undersigned finds that plaintiff’s claim in his objections that he suffers from 6 continuous pain and suffering due to the lack of dental treatment for his torn and ruptured crown, 7 and that his molar is now infected, may meet the imminent physical injury exception to section 8 1915(g). For this reason, the September 17, 2020 findings and recommendations are vacated and 9 plaintiff’s application to proceed in forma pauperis is granted. 10 Federal Rule of Civil Procedure 20(a) provides that all persons may be joined in one 11 action as defendants if “any right to relief is asserted against them jointly, severally, or in the 12 alternative with respect to or arising out of the same transaction, occurrence, or series of 13 transactions or occurrences” and “any question of law or fact common to all defendants will arise 14 in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 15 2007) (“Unrelated claims against unrelated defendants belong in different suits”). 16 Plaintiff’s claim that defendant Scamurra denied him emergency dental treatment for his 17 torn and ruptured crown is unrelated to the claims alleged against the other defendants in the 18 complaint. For this reason, the undersigned finds plaintiff’s claims are improperly joined, in 19 violation of Federal Rule of Civil Procedure 20. Accordingly, plaintiff may proceed only with his 20 claim against defendant Scamurra. The undersigned recommends dismissal of the remaining, 21 unrelated claims on the grounds that they are improperly joined. 22 As discussed above, plaintiff does not expressly seek injunctive relief related to his 23 allegedly torn and ruptured crown. Plaintiff appears to only seek money damages for this claim. 24 Plaintiff’s failure to request injunctive relief undermines plaintiff’s claim that his failure to 25 receive dental care for his torn and ruptured crown meets the imminent danger exception. 26 Accordingly, plaintiff’s claim against defendant Scamurra is dismissed with leave to 27 amend. Plaintiff is granted thirty days to file an amended complaint containing only his claim 28 alleging that defendant Scamurra failed to treat his torn and ruptured crown, which caused him to 1 suffer continuous pain and suffering. Plaintiff’s amended complaint shall include a request for 2 damages and injunctive relief with respect to this claim (unless plaintiff is not seeking injunctive 3 relief). 4 If the undersigned finds that plaintiff’s amended complaint does not meet the imminent 5 danger exception, he will recommend that the order granting plaintiff’s application to proceed in 6 forma pauperis be withdrawn. 7 Motion for Appointment of Counsel 8 Plaintiff requests that the court appoint counsel. District courts lack authority to require 9 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 10 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 11 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 12 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 13 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 14 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 15 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 16 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 17 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 18 common to most prisoners, such as lack of legal education and limited law library access, do not 19 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 20 Having considered the factors under Palmer, the court finds that plaintiff has failed to 21 meet his burden of demonstrating exceptional circumstances warranting the appointment of 22 counsel at this time. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 25 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 26 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 27 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 28 Director of the California Department of Corrections and Rehabilitation filed concurrently wOAOe 2 OU UVM ETP RINUING IN VUE PO Ae OY VV 1 | herewith. 2 3. Plaintiff's claims against defendant Scamurra are dismissed with thirty days to file an 3 | amended complaint; failure to file an amended complaint within that time will result in a 4 | recommendation of dismissal of this action; 5 4. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint 6 | by a prisoner; 7 5. The September 17, 2020 findings and recommendations (ECF No. 8) are vacated; 8 6. Plaintiff's motion for appointment of counsel (ECF No. 10) is denied; 9 IT IS HEREBY RECOMMENDED that all claims in plaintiff's complaint, but for the 10 | claim alleging inadequate dental care against defendant Scamurra, be dismissed on the grounds 11 | that they are improperly joined. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, plaintiff may file written objections 15 | with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 17 | failure to file objections within the specified time may waive the right to appeal the District 18 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: October 8, 2020 20 Aectl Aharon 2] KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 23 24 Uh1664.56 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10022681. Public record. Not legal advice.