(PC) Pavao v. Unknown

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ENRICO PAVAO, No. 2:21-cv-2082 TLN AC P

12 Plaintiff,

13 v. ORDER

14 UNKNOWN,

15 Defendant.

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17 Plaintiff, a county jail inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983

18 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF

19 Nos. 1, 2, 6. Plaintiff has also filed a motion for the appointment of counsel. ECF No. 3. This

20 proceeding was referred to this Court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)(B).

21 For the reasons stated below, Plaintiff will be ordered to file an amended complaint or

22 face dismissal. In addition, Plaintiff’s request for the appointment of counsel will be denied.

23 I. IN FORMA PAUPERIS APPLICATION

24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

25 1915(a). ECF Nos. 2, 6. Accordingly, the request to proceed in forma pauperis will be granted.

26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the Court will

1 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account

2 and forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments

3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

4 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the

5 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

6 1915(b)(2).

7 II. SCREENING REQUIREMENT

8 The Court is required to screen complaints brought by prisoners seeking relief against a

9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

10 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

15 Cir. 1984). The Court may, therefore, dismiss a claim as frivolous where it is based on an

16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

19 Cir. 1989); Franklin, 745 F.2d at 1227.

20 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

21 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

22 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

23 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

24 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

25 this standard, the Court must accept as true the allegations of the complaint in question, Hosp.

26 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

27 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

28 McKeithen, 395 U.S. 411, 421 (1969).

1 III. THE COMPLAINT

2 Plaintiff, an inmate housed at the Sacramento County Main Jail (“SCMJ”), names as

3 defendants “John and Jane Doe 1-20,” all of whom are SCMJ employees. ECF No. 1 at 2. The

4 complaint does not identify any defendant by name. Plaintiff states that at the time of the

5 incidents in question, he was a pretrial detainee. Id. at 8. He also states that he has ADA-level

6 disabilities. Id. at 9-10, 14, 17. The claims are based on a lengthy factual narrative that begins

7 with plaintiff’s conditions of confinement in “3 West,” where he was placed because he was

8 suicidal. Id. at 8-18. Plaintiff alleges that he received inadequate care for a sexually transmitted

9 disease, complained about his care and was then transferred to a more restrictive setting, was

10 mistreated in the booking process for suicide watch, was put in a non-ADA compliant cell, was

11 subjected to unsanitary conditions, was threatened and intimidated, and was denied necessary

12 medical care. Defendants who were supervisors failed to properly train other defendants and

13 ensure they did not use excessive force. Id.

14 Plaintiff’s claims are all framed as due process issues. In Claim One, plaintiff alleges in

15 conclusory terms that the events described in his narrative constituted excessive force and denied

16 him the minimal civilized measures of life’s necessities at the jail. Id. at 18, 19. Claim Two

17 asserts in general terms that plaintiff’s conditions of confinement amounted to punishment and

18 exposed him to harm. Id. at 19-21. Claim Three primarily alleges that plaintiff was denied

19 adequate medical care. Id. at 21-23. Claim Four appears to primarily rest on allegations of

20 retaliation in violation of plaintiff’s First Amendment rights. Id. at 23-24. All four claims

21 reiterate much of the same conclusory legal language; none identifies any specific act of any

22 individual defendant.

23 IV. FAILURE TO STATE A CLAIM

24 A. Defects that Affect the Complaint as a Whole

25 1. Doe Defendants

26 The use of “Doe” defendants is disfavored in the Ninth Circuit. See Gillespie v. Civiletti,

27 629 F.2d 637, 642 (9th Cir. 1980). However, where a plaintiff has stated a cognizable claim

28 against a defendant whose identity cannot be known prior to the filing of a complaint, he may use

1 “Doe” as a placeholder while he attempts to discover the defendant’s name. See Wakefield v.

2 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). When plaintiff later learns the identity of a Doe

3 defendant through discovery or by other means, he may move to file a further amended complaint

4 to add the newly named defendant. Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th

5 Cir. 2003).

6 Because it is not possible to serve an unknown individual, a complaint must state at least

7 one viable claim against an identified defendant in order to be served. Absent service of a

8 defendant, a case cannot proceed. Because plaintiff’s complaint brings claims only against Doe

9 defendants, and alleges no identifying information regarding any of them, service would be

10 impossible even if plaintiff had stated a claim for relief.

11 2. Defendants Liable for Own Acts and Omissions Only

12 Individual jail officials and employees can be sued under § 1983 only for their own

13 specific acts and omissions that cause a violation of plaintiff’s rights. See Johnson v. Duffy, 588

14 F.2d 740, 743 (9th Cir. 1978). This principle also applies to supervisors, as there is no respondeat

15 superior liability under § 1983. See Iqbal, 556 U.S at 676; Starr v. Baca, 652 F.3d 1202, 1207

16 (9th Cir. 2011). Plaintiff has not identified any specific acts of particular individuals (including

17 Doe defendants) who are alleged to be responsible for the deprivations he complains of. He

18 therefore has not stated any claim for which relief could be granted. To state a claim for relief,

19 plaintiff must plainly identify who did what that violated his rights.

20 3. Rule 8 Requirements

21 Rule 8 of the Federal Rules of Civil Procedure requires a “short and plain statement”

22 setting forth plaintiff’s entitlement to relief. Conclusory allegations are insufficient. See

23 Ashcroft v. Iqbal, 556 U.S. 662, 678, 679 (2009). The complaint must give each defendant notice

24 of what claim is made against them and on what basis. See Bell Atlantic Corporation v.

25 Twombly, 550 U.S. 544, 555 (2007). The court (and defendants) should be able to read and

26 understand plaintiff’s pleading within minutes. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th

27 Cir. 1996).

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1 The complaint before the court consists of a lengthy factual narrative involving many

2 events and issues, followed by “Claims” that refer globally to all factual allegations and present

3 conclusory legal language invoking multiple constitutional provisions. To satisfy Rule 8, plaintiff

4 must link his specific factual allegations to particular claims. Each separate claim must state

5 plainly and concisely what actions of which defendants violated a specific right of plaintiff’s.

6 Because the complaint before the court fails to satisfy these Rule 8 standards, it is not amenable

7 to claim-by-claim screening.

8 Plaintiff will be provided an opportunity to amend the complaint. To assist him in doing

9 so, the court will set forth the legal standards that govern the claims it appears plaintiff is trying to

10 present. Plaintiff is informed that in order to state a claim based on the denial of any of these

11 rights, he must specify on a claim-by-claim basis what actions of which defendants caused the

12 particular deprivation.

13 B. Rights of Pretrial Detainees

14 1. Generally

15 The rights of pretrial detainees are grounded in the Due Process Clause. Bell v. Wolfish,

16 441 U.S. 520, 545 (1979); Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008).

17 Detainees have a substantive due process right against restrictions that amount to punishment.

18 Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002) (citing United States v. Salerno, 481

19 U.S. 739, 746 (1987)). “For a particular governmental action to constitute punishment, (1) that

20 action must cause the detainee to suffer some harm or ‘disability,’ and (2) the purpose of the

21 governmental action must be to punish the detainee.” Demery v. Arpaio, 378 F.3d 1020, 1029

22 (9th Cir. 2004) (citing Bell, 441 U.S. at 538). “Unless there is evidence of intent to punish, then

23 those conditions or restrictions that are reasonably related to legitimate penological objectives do

24 not violate a pretrial detainee’s right to be free from punishment.” Hatter v. Dyer, 154 F. Supp.

25 3d 940, 945 (C.D. Cal. 2015) (citing Block v. Rutherford, 468 U.S. 576, 584 (1984)).

26 In the first step of this inquiry, “the harm or disability . . . must either significantly exceed,

27 or be independent of, the inherent discomforts of confinement.” Id. at 1030 (citing Bell, 441 U.S.

28 at 537). To determine punitive intent, courts “first examine whether the restriction is based upon

1 an express intent to inflict punishment.” Valdez, 302 F.3d at 1045 (citing Salerno, 481 U.S. at

2 746). Courts “next consider whether punitive intent can be inferred from the nature of the

3 restriction. This determination . . . will generally turn upon ‘whether an alternative purpose to

4 which [the restriction] may rationally be connected is assignable for it, and whether [the

5 restriction] appears excessive in relation to the alternative purpose assigned [to it].’” Id. (citing

6 Bell, 441 U.S. at 539) (brackets in original).

7 Accordingly, as to any condition of confinement alleged to be unconstitutional, plaintiff

8 must plead facts that demonstrate both (1) harm to plaintiff and (2) an intent to punish plaintiff,

9 rather than a legitimate penological rationale, motivating the challenged action or restriction.

10 2. Medical Care

11 Plaintiff has made serious allegations regarding his mental and physical health and the

12 inadequate responses of jail staff generally. A claim of unconstitutional medical care by a pretrial

13 detainee is governed by an objective deliberate indifference standard. See Gordon v. County of

14 Orange, 888 F.3d 1118, 1124-1125 (9th Cir. 2018). To state a claim, plaintiff must plead facts

15 establishing that (1) a particular defendant or defendants made an intentional decision with

16 respect to plaintiff’s care or treatment; (2) that decision put the plaintiff at substantial risk of

17 suffering serious harm; (3) the particular defendant did not take reasonable available measures to

18 abate that risk, even though a reasonable official in the circumstances would have appreciated the

19 high degree of risk involved—making the consequences of the defendant’s conduct obvious; and

20 (4) by not taking such measures, the defendant caused the plaintiff’s injuries. See id.

21 3. Sanitation and Safety

22 Unsanitary or otherwise unsafe conditions can, when severe enough, violate the Eighth

23 Amendment rights of convicted prisoners by rising to level of cruel and unusual punishment, or

24 violate the Fourteenth Amendment rights of pretrial detainees by rising to the level of

25 punishment. See Anderson v. County of Kern, 45 F.3d 1310, 1314, as amended, 75 F.3d 448 (9th

26 Cir. 1995); Martino v. Carey, 563 F. Supp. 984, 999-1000 (D. Or. 1983). To state a claim,

27 plaintiff must identify the individuals responsible for creating the specific unsanitary and/or

28 dangerous conditions at issue, and explain what those individuals did to create the condition or

1 danger. He must plead facts demonstrating that the specified defendants acted with punitive

2 intent. Valdez, 302 F.3d at 1045.

3 4. First Amendment Retaliation

4 Adverse actions taken against an incarcerated person violate the constitution and support

5 relief under § 1983, even when the adverse actions themselves do not rise to the level of an

6 independent constitutional violation, if they are taken in retaliation for constitutionally protected

7 conduct. See Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017); Rhodes v. Robinson, 408

8 F.3d 559, 567-68 (9th Cir. 2005). To state a claim for retaliation, plaintiff must allege facts

9 establishing that (1) a state actor took some adverse action against an inmate (2) because of (3)

10 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

11 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.

12 Rhodes, 408 F.3d at 567-68.

13 5. Americans with Disabilities Act

14 It is unclear whether plaintiff intends to rely on the ADA for a cause of action, but the

15 complaint makes allegations of ADA violations. Accordingly, the court provides the following

16 information. Under Title II of the ADA, “no qualified individual with a disability shall, by reason

17 of such disability, be excluded from participation in or be denied the benefits of the services,

18 programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

19 42 U.S.C. § 12132. Such claims must be brought against the public entity itself. See United

20 States v. Georgia, 546 U.S. 151, 159 (2006).

21 To state a claim under Title II of the ADA, plaintiff must allege that:

22 (1) he “is an individual with a disability;” (2) he “is otherwise

qualified to participate in or receive the benefit of some public

23 entity’s services, programs, or activities;” (3) he “was either

excluded from participation in or denied the benefits of the public

24 entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity;” and (4) “such exclusion,

25 denial of benefits, or discrimination was by reason of [his]

disability.”

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27 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original) (quoting

28 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002)).

1 V. LEAVE TO AMEND

2 Plaintiff will be given the opportunity to amend the complaint. If plaintiff chooses to

3 amend, the newly filed amended complaint will take the place of the original. See Lacey v.

4 Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (stating amended complaint supersedes original

5 complaint). Any amended complaint should observe the following:

6 An amended complaint must identify as a defendant only persons who personally

7 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v.

8 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

9 constitutional right if he does an act, participates in another's act or omits to perform an act he is

10 legally required to do that causes the alleged deprivation).

11 An amended complaint must also contain a caption including the names of all defendants.

12 Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated

13 claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

14 Any amended complaint must be written or typed so that it is complete in itself without

15 reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an

16 amended complaint supersedes any earlier filed complaint, and once an amended complaint is

17 filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375

18 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being

19 treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693

20 F.3d 896 (2012).

21 VI. MOTION TO APPOINT COUNSEL

22 As for plaintiff’s motion for the appointment of counsel, ECF No. 3, the United States

23 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

24 prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

25 In certain exceptional circumstances, the district court may request the voluntary assistance of

26 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

27 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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1 The test for exceptional circumstances requires the Court to evaluate the plaintiff’s

2 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

3 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

4 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

5 common to most prisoners, such as lack of legal education and limited law library access, do not

6 establish exceptional circumstances that would warrant a request for voluntary assistance of

7 counsel.

8 Plaintiff argues that the appointment of counsel is necessary because the issues in this case

9 require an understanding of medical terminology; he has an EOP level of mental health care; he

10 has limited knowledge of the law, and he only has a GED. See ECF No. 3. Because plaintiff has

11 yet to name any defendants in this action, or file a complaint that complies with Rule 8, it is not

12 possible at this time to assess the potential merit of his claims. Moreover, the circumstances on

13 which plaintiff relies are common to many if not most prisoners. For these reasons, the Court

14 does not find the required exceptional circumstances. The motion will be denied.

15 VII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT

16 Your complaint does not state any claim for relief and will not be served. You are being

17 given the opportunity to file an amended complaint. In order to proceed, you must identify as

18 many defendants as possible by name, because an unnamed defendant can’t be served. If you do

19 not know an individual’s name, you may call that person John or Jane Doe for the time being, but

20 at least one defendant must be identified by name or the case cannot move forward.

21 An amended complaint must clearly state what each individual jail employee you are

22 suing did to violate your rights. The court has provided information about what kinds of facts are

23 needed to support each type of claim it looks like you are trying to bring. You should organize

24 the facts about what each defendant did under the headings of the individual claims, based on the

25 nature of the alleged violation.

26 Your request for counsel is denied at this time, because the court cannot tell yet whether

27 your case will move forward. Also, your case is not “exceptional” because many incarcerated

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1 | persons have similar problems representing themselves. You may request the appointment of a

2 || pro bono (volunteer) lawyer again at a later stage of the case.

3 CONCLUSION

4 Accordingly, IT IS HEREBY ORDERED that:

5 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED.

6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

7 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

8 | 1915(b)(1). All fees shall be collected and paid in accordance with this Court’s order to the

9 || appropriate agency filed concurrently herewith.

10 3. Plaintiff's complaint fails to state a claim upon which relief may be granted, see 28

11 | U.S.C. § 1915A, and will not be served.

12 4. Within thirty days from the date of service of this order, plaintiff may file an amended

13 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

14 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

15 || number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an

16 || original and two copies of the amended complaint. Failure to file an amended complaint in

17 || accordance with this order will result in dismissal of this action.

18 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

19 | form used in this district.

20 6. Plaintiffs motion for the appointment of counsel, ECF No. 3, is DENIED without

21 || prejudice.

22 || DATED: January 12, 2022 ~

23 Htttenr— Lhor—e_

ALLISON CLAIRE

24 UNITED STATES MAGISTRATE JUDGE

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