# Nicholson v. Sando

> District Court, N.D. California · March 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10063450

## Case

- **Court:** District Court, N.D. California
- **Decided:** March 20, 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/10063450

## How later opinions describe it (automated extraction)

- holding party opposing summary judgment 5 must come forward with evidence showing triable issues of material fact on every essential 6 element of his claim

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10
CHARLES NICHOLSON,
11 Case No. 19-01345 EJD (PR)
Plaintiff,
12 ORDER OF SERVICE; DENYING
MOTION FOR APPOINTMENT OF
v.
13 COUNSEL; DIRECTING

DEFENDANT TO FILE

14 DISPOSITIVE MOTION OR
D. SANDO, NOTICE REGARDING SUCH
15 MOTION; INSTRUCTIONS TO
Defendant. CLERK
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(Docket No. 9)
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18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action
19 pursuant to 42 U.S.C. § 1983 against Correctional Officer D. Sando at Salinas Valley State
20 Prison (“SVSP”), where he was formerly housed. Plaintiff’s
21 DISCUSSION
22 A. Standard of Review
23 A federal court must conduct a preliminary screening in any case in which a
24 prisoner seeks redress from a governmental entity or officer or employee of a
25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
26 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
27 upon which relief may be granted or seek monetary relief from a defendant who is immune
1 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
2 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
3 elements: (1) that a right secured by the Constitution or laws of the United States was
4 violated, and (2) that the alleged violation was committed by a person acting under the
5 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
6 B. Plaintiff’s Claims
7 Plaintiff claims that on July 29, 2019, Defendant Correctional Officer Sando used
8 pepper spray on him while Plaintiff was merely attempting to walk into his cell. Dkt. No.
9 1 at 11. Plaintiff claims he had mechanical waist restraints on at the time. Id. Plaintiff
10 claims he was not allowed to shower and properly decontaminate, resulting in the loss of
11 vision and breathing problems. Id. Plaintiff claims Defendant Sando’s actions violated the
12 Eighth Amendment because he maliciously and sadistically used pepper spray to cause
13 harm, and that Defendant’s refusal to allow Plaintiff to shower and decontaminate showed
14 a total disregard to the harm he exposed Plaintiff to and jeopardized his health and safety.
15 Id. at 15. Plaintiff seeks damages as well as declaratory and injunctive relief. Id. at 3.
16 Liberally construed, Plaintiff’s allegations state cognizable Eighth Amendment
17 claims for excessive force based on the unwarranted use of pepper spray, see Hudson v.
18 McMillian, 503 U.S. 1, 8 (1992), and the deliberate indifference to Plaintiff’s health, see
19 Helling v. McKinney, 509 U.S. 25, 31 (1993).
20 C. Request for Appointment of Counsel
21 In a brief letter filed with the Court, Plaintiff requests appointment of counsel. Dkt.
22 No. 9. There is no constitutional right to counsel in a civil case unless an indigent litigant
23 may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social
24 Services, 452 U.S. 18, 25 (1981)1; Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)
25 (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on
26 reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to
1 and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221,
2 1236 (9th Cir. 1984). A finding of the “exceptional circumstances” of the plaintiff seeking
3 assistance requires an evaluation of the likelihood of the plaintiff’s success on the merits
4 and an evaluation of the plaintiff’s ability to articulate his claims pro se in light of the
5 complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America,
6 390 F.3d 1101, 1103 (9th Cir. 2004); Rand,113 F.3d at 1525; Terrell v. Brewer, 935 F.2d
7 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
8 Both of these factors must be viewed together before reaching a decision on a request for
9 counsel under § 1915. See id. Plaintiff asserts that he is mentally ill and “don’t exactly
10 know what to do.” Dkt. No. 9. However, he has managed, in pro se, to clearly articulate
11 his claims and the Eighth Amendment issues involved are not complex. Furthermore, if
12 Plaintiff’s allegations are substantiated, he has a good likelihood of success on the merits.
13 Accordingly, Plaintiff’s motion for appointment of counsel is DENIED without prejudice
14 for lack of exceptional circumstances. See Rand, 113 F.3d at 1525; Terrell, 935 F.2d at
15 1017; Wilborn, 789 F.2d at 1331.
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17 CONCLUSION
18 For the reasons state above, the Court orders as follows:
19 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for
20 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy
21 of the complaint, Dkt. No. 1, all attachments thereto, and a copy of this order upon
22 Defendant Correctional Officer D. Sando at Salinas Valley State Prison (P.O. Box
23 1020, Soledad, CA 93960-1020). The Clerk shall also mail a copy of this Order to
24 Plaintiff.
25 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil
26 Procedure requires them to cooperate in saving unnecessary costs of service of the
1 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail
2 to do so, they will be required to bear the cost of such service unless good cause shown for
3 their failure to sign and return the waiver form. If service is waived, this action will
4 proceed as if Defendants had been served on the date that the waiver is filed, except that
5 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer
6 before sixty (60) days from the day on which the request for waiver was sent. (This
7 allows a longer time to respond than would be required if formal service of summons is
8 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver
9 form that more completely describes the duties of the parties with regard to waiver of
10 service of the summons. If service is waived after the date provided in the Notice but
11 before Defendants have been personally served, the Answer shall be due sixty (60) days
12 from the date on which the request for waiver was sent or twenty (20) days from the date
13 the waiver form is filed, whichever is later.
14 3. No later than ninety-one (91) days from the date this order is filed,
15 Defendants shall file a motion for summary judgment or other dispositive motion with
16 respect to the claims found to be cognizable above.
17 a. Any motion for summary judgment shall be supported by adequate
18 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
19 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor
20 qualified immunity found, if material facts are in dispute. If any Defendant is of the
21 opinion that this case cannot be resolved by summary judgment, he shall so inform the
22 Court prior to the date the summary judgment motion is due.
23 b. In the event Defendants file a motion for summary judgment, the
24 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate
25 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See
26 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).
1 and served on Defendants no later than twenty-eight (28) days from the date Defendants’
2 motion is filed.
3 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and
4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment
5 must come forward with evidence showing triable issues of material fact on every essential
6 element of his claim). Plaintiff is cautioned that failure to file an opposition to
7 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to
8 the granting of the motion, and granting of judgment against Plaintiff without a trial. See
9 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18
10 F.3d 651, 653 (9th Cir. 1994).
11 5. Defendants shall file a reply brief no later than fourteen (14) days after
12 Plaintiff’s opposition is filed.
13 6. The motion shall be deemed submitted as of the date the reply brief is due.
14 No hearing will be held on the motion unless the Court so orders at a later date.
15 7. All communications by the Plaintiff with the Court must be served on
16 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true
17 copy of the document to Defendants or Defendants’ counsel.
18 8. Discovery may be taken in accordance with the Federal Rules of Civil
19 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
20 Rule 16-1 is required before the parties may conduct discovery.
21 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
22 court informed of any change of address and must comply with the court’s orders in a
23 timely fashion. Failure to do so may result in the dismissal of this action for failure to
24 prosecute pursuant to Federal Rule of Civil Procedure 41(b).
25 10. Extensions of time must be filed no later than the deadline sought to be
26 extended and must be accompanied by a showing of good cause.
1 Dkt. No. 9.
2 This order terminates Docket No. 9.
3 IT IS SO ORDERED. aD
4 Dated: — 3/20/2020
EDWARD J. DAVILA
5 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10063450. Public record. Not legal advice.