no constitutional right to counsel in § 1983 12 action
How later courts described this case
- no constitutional right to counsel in § 1983 12 action
- gross negligence 10 insufficient to state claim for denial of medical needs to prisoner
Written by the judges who cited it.
The opinion
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6 UNITED STATES DISTRICT COURT
7 NORTHERN DISTRICT OF CALIFORNIA
8
MICHAEL JOSEPH PAGALING,
9 Case No. 22-cv-02202 BLF (PR)
Plaintiff,
10 ORDER OF DISMISSAL WITH
v. LEAVE TO AMEND; DENYING
11 MOTION FOR APPOINTMENT OF
COUNSEL; DENYING OTHER
12 NAPA STATE HOSPITAL, et al., MOTIONS
13 Defendants.
(Docket Nos. 3, 12, 14)
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16 Plaintiff, a state prisoner, filed a civil rights complaint the Napa State Hospital
17 (“NSH”), where he is currently confined, and its employees. Dkt. No. 1 at 2.1 Plaintiff’s
18 motion for leave to proceed in forma pauperis will be addressed in a separate order.
19 Plaintiff has also filed a motion for appointment of counsel, Dkt. No. 3, motion requesting
20 information, Dkt. No. 12, and a motion for discovery, Dkt. No. 14.
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22 DISCUSSION
23 A. Standard of Review
24 A federal court must conduct a preliminary screening in any case in which a
25 prisoner seeks redress from a governmental entity or officer or employee of a
26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
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1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
2 upon which relief may be granted or seek monetary relief from a defendant who is immune
3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally
4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
6 elements: (1) that a right secured by the Constitution or laws of the United States was
7 violated, and (2) that the alleged violation was committed by a person acting under the
8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
9 B. Plaintiff’s Claims
10 Plaintiff claims that since he arrived at the hospital in May 2015, he has been unable
11 to “go up to the groups in the S-complex” where there are craft groups, a computer lab,
12 painting, sewing, needle craft, and other groups which he cannot attend because there is no
13 wheelchair access. Dkt. No. 1 at 3. Plaintiff claims that he was on “unit T-16” for 5 years
14 and was not allowed to go to “full discharge unit” because his wheelchair cannot fit in the
15 room and there were “issues with handicap accessibility.” Id. Plaintiff alleges that he is a
16 paraplegic and cannot go to the groups in those units. Id. Plaintiff claims NSH is liable
17 for “disability discrimination” and various staff members within Unit T-16 are liable for
18 gross negligence. Id. at 2. Plaintiff seeks damages. Id. at 6.
19 Plaintiff’s allegations of “disability discrimination” implicate Title II of the
20 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., which provides that
21 “no qualified individual with a disability shall, by reason of such disability, be excluded
22 from participation in or be denied the benefits of the services, programs, or activities of a
23 public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
24 Title II protects “a qualified individual with a disability.” 42 U.S.C. § 12132. In the
25 context of the ADA, the term “disability” means: “(A) a physical or mental impairment
26 that substantially limits one or more of the major life activities of the person; (B) having a
1 12102(1). For purposes of § 12102(a), “major life activities include, but are not limited to,
2 caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
3 standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
4 communicating, and working.” 42 U.S.C. § 12102(2)(A). Liberally construed, Plaintiff’s
5 allegations that he was denied access to various services and programs at NSH as a
6 paraplegic are sufficient to state a claim under the ADA.
7 On the other hand, Plaintiff’s claims of gross negligence are not cognizable under §
8 1983 and is only viable under state law. See Farmer v. Brennan, 511 U.S. 825, 835-36 &
9 n.4 (1994); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence
10 insufficient to state claim for denial of medical needs to prisoner). This Court has
11 supplemental jurisdiction over state-law claims. See 28 U.S.C. § 1367(a). However, there
12 are no factual allegations against the individually named Defendants of Unit T-16, i.e.,
13 Supervisor John Simms, Nurse Almira, Nurse Ethelda, Nurse Roselle, Nurse Nelly,
14 Precious (shift lead), and Dr. Trihn, to establish a gross negligence claim against any of
15 them. Dkt. No. 1 at 2. Plaintiff shall be granted leave to file an amended complaint to
16 allege specific facts to state such a claim. He must describe the actions of each Defendant,
17 including when and where they took such actions, and how their actions amount to gross
18 negligence.
19 In the alternative, Plaintiff may opt to strike the gross negligence claims from the
20 complaint and proceed solely on ADA claim against NSH. Then the individually named
21 staff members of Unit T-16 will be dismissed from this action, which will then proceed
22 solely against NSH based on the ADA claim.
23 C. Pending Motions
24 Plaintiff filed a request for details of his cases in order to “refile a new summons,
25 and complaint along with motions for each case.” Dkt. No. 12. The docket reflects that
26 the Clerk responded to his request on June 30, 2022. Accordingly, this motion shall be
1 Plaintiff’s request for discovery from NSH, Dkt. No. 14, is DENIED as premature
2 since the matter has not yet been served on any defendant. Discovery shall proceed once
3 the Court orders service of this matter. Meanwhile, Plaintiff should attempt the normal
4 administrative channels to obtain access to his medical records and central file. See, e.g.,
5 Cal. Code Regs. tit. 15, §§ 3999.217 to 3999.219; California Correctional Health Care
6 Service, Department Operations Manual §§ 2.2.2, 2.3.4, 2.3.14, 2.3.15.
7 Plaintiff requests appointment of counsel because he has a mental disability and is
8 on “mind altering medication.” Dkt. No. 3. First of all, there is no constitutional right to
9 counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses
10 the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v.
11 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983
12 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir.
13 1998) (en banc). The decision to request counsel to represent an indigent litigant under §
14 1915 is within “the sound discretion of the trial court and is granted only in exceptional
15 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Despite his
16 alleged mental disability, Plaintiff has shown that he is capable of litigating this matter by
17 filing coherent and organized papers. Accordingly, the motion is DENIED for lack of
18 exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101,
19 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d
20 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
21 The Court will also consider the motion under Federal Rule of Civil Procedure
22 17(c), which provides in relevant part that:
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A minor or an incompetent person who does not have a duly appointed
24 representative may sue by a next friend or by a guardian ad litem. The court
must appoint a guardian ad litem – or issue another appropriate order – to
25 protect a minor or incompetent person who is unrepresented in an action.
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1 exists regarding the mental incompetence of a pro se litigant, the district court should
2 conduct a hearing to determine competence so that a guardian ad litem may be appointed if
3 appropriate. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood,
4 880 F.2d 1119, 1121 (9th Cir. 1989). Other circuits have held that a district court’s duty of
5 inquiry under Rule 17(c) is triggered by “verifiable evidence” of incompetence. See, e.g.,
6 Powell v. Symons, 680 F.3d 301, 307 (3rd Cir. 2012); Ferrelli v. River Manor Health Care
7 Center, 323 F.3d 196, 203 (2d Cir. 2003).
8 The Ninth Circuit found a “substantial question” regarding competence where a pro
9 se prisoner litigant submitted a letter from the prison psychiatrist stating that the litigant
10 was under his care, had been diagnosed with schizophrenia, and was taking psychotropic
11 medications, see Allen, 408 F.3d at 1152, but it found no substantial question where a pro
12 se litigant merely asserted that the district court should have conducted a competency
13 hearing, see Day v. Sonoma Cnty., 1997 WL 686016, at *2 (9th Cir. Oct. 30, 1997). The
14 Third Circuit found “verifiable evidence” of incompetence where one co-plaintiff was
15 adjudicated incompetence in a simultaneous criminal proceeding and the other co-plaintiff
16 submitted a letter from a mental health professional. See Powell, 680 F.3d at 308-09. The
17 Second Circuit has indicated that “verifiable evidence” could take the form of records from
18 a court or public agency or evidence from a mental health professional, but that bizarre
19 behavior, standing alone, is not sufficient to trigger a district court’s duty of inquiry under
20 Rule 17(c). See Ferrelli, 323 F.3d at 201-02.
21 In this case, Plaintiff has provided no evidence in support of his motion and
22 therefore does not raise a substantial question regarding his competence. Dkt. No. 3.
23 Furthermore, as stated above, Plaintiff has shown an ability to articulate his claims despite
24 his alleged mental disability. Lastly, Plaintiff’s mere assertion that he needs the assistance
25 of counsel to proceed with the case, without more, is not sufficient to raise a substantial
26 question. See, e.g., Day, 1997 WL 686016, at *2. Accordingly, the Court finds that in the
1 Plaintiff’s competence and therefore no duty of inquiry. See Allen, 408 F.3d at 1152;
2 Ferrelli, 323 F.3d at 201-02. Plaintiff does not warrant appointment of a guardian ad litem
3 under Rule 17(c).
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5 CONCLUSION
6 For the reasons state above, the Court orders as follows:
7 1. The complaint is DISMISSED with leave to amend. Within twenty-eight
8 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using
9 the court’s form complaint to correct the deficiencies described above. The amended
10 complaint must include the caption and civil case number used in this order, i.e., Case No.
11 C 22-cv-02202 BLF (PR), and the words “AMENDED COMPLAINT” on the first page.
12 Plaintiff must answer all the questions on the form in order for the action to proceed.
13 Plaintiff is reminded that the amended complaint supersedes the original, and Plaintiff may
14 not make references to the original complaint. Claims not included in the amended
15 complaint are no longer claims and defendants not named in an amended complaint are no
16 longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
17 2. In the alternative, Plaintiff may file notice in the same time provided that he
18 wishes to strike the gross negligence claims from the complaint and proceed solely on the
19 ADA claim against NSH. All other defendants will be dismissed from this action.
20 3. Failure to respond in accordance with this order by filing an amended
21 complaint in the time provided will result in the dismissal of the gross negligence
22 claims for failure to state a claim without further notice to Plaintiff. The individually
23 named staff members of Unit T-16 will be dismissed from this action, and this matter
24 will proceed on the ADA claim against NSH.
25 4. Plaintiff’s motion for appointment of counsel is DENIED for lack of
26 exceptional circumstances. Dkt. No. 3. Plaintiff’s motion for information is DENIED as
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2 This order terminates Docket Nos. 3, 12, and 14.
3 IT IS SO ORDERED.
4 || Dated: August 3, 2022 □□□ Plows omen)
5 BETH LABSON FREEMAN
United States District Judge
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95 Order of Dismissal with Leave to Amend; Denying Other Motion
PRO-SE\BLF\CR.22\02202Pagaling dwlta
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