no constitutional 14 right to counsel in § 1983 action
How later courts described this case
- no constitutional 14 right to counsel in § 1983 action
- holding party opposing summary judgment 24 must come forward with evidence showing triable issues of material fact on every essential 25 element of his claim
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10
JASON SMITH,
11 Case No. 22-cv-02779 BLF (PR)
Plaintiff,
12 ORDER OF SERVICE; DIRECTING
v. DEFENDANTS TO FILE
13 DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
14 JESUS LOPEZ, et al., MOTION; DENYING REQUEST
FOR APPOINTMENT OF
15 Defendants. COUNSEL; INSTRUCTIONS TO
CLERK
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18 Plaintiff, a state prisoner, filed a civil rights complaint pursuant to 42 U.S.C. §
19 1983, against officers of the Prison Investigative Services Unit (“ISU”) at the Correctional
20 Training Facility (“CTF”), where he is currently confined. Dkt. No. 1. The Court
21 dismissed the complaint with leave to amend. Dkt. No. 3. Plaintiff filed an amended
22 complaint, in which he also requests appointment of counsel. Dkt. No. 8.
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24 DISCUSSION
25 A. Standard of Review
26 A federal court must conduct a preliminary screening in any case in which a
27 prisoner seeks redress from a governmental entity or officer or employee of a
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 following an “institutional racial raid” on July 20, 2020, he
11 began sending letters to various legal entities requesting an inquiry, investigation, or any
12 other form of assistance for the prisoners who were targeted in the raid. Dkt. No. 8 at ¶ 17.
13 He sent one letter to the Office of Internal Affairs, and another to the Pavone and Fonner
14 Law Firm. Id. On August 17, 2020, Plaintiff received a response to his letter to the Office
15 of Internal Affairs from Warden Craig Koenig. Id. at ¶ 18. The following day, on August
16 18, 2020, Plaintiff submitted an inmate grievance alleging violations of his constitutional
17 rights in connection with the July 20, 2020 raid. Id. at ¶ 19. On September 29, 2020,
18 Plaintiff received correspondence from attorney Benjamin Pavone, which was clearly
19 marked “Legal Mail – Attorney/Client Privilege.” Id. at ¶ 20. However, the mail was
20 marked by the CTF mailroom as “opened in error” with the notation “ISU Staff.” Id. at ¶
21 21. Plaintiff claims that the mail was opened by Defendant “ISU K9 Mell.” Id.
22 Plaintiff claims that his mail was opened purposefully by ISU C. Mell, and that the
23 mail was opened after prison officials became aware of his letter to the Office of Internal
24 Affairs and the filing of his grievance. Id. at ¶ 22. Plaintiff claims that when Defendant
25 Mell opened his legal mail, “all the name Defendants were present, failed to act and/or
26 intervene; thereby making them acquiescent of a First Amendment violation.” Id. at ¶ 26.
1 the government for redress of grievances and that their actions violated his rights under the
2 First Amendment to free speech. Id. He seeks declaratory and injunctive relief as well as
3 damages. Dkt. No. 8 at 19-21.
4 Liberally construed, Plaintiff’s allegations are sufficient to state claims under the
5 First Amendment for the unauthorized inspection of his legal mail outside of his presence
6 and for retaliation. See Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211 (9th Cir.
7 2017); O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); see also Rhodes v.
8 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
9 Plaintiff requests appointment of counsel as part of his prayer for relief, asserting
10 that he is a “lay-person and un-skilled at law.” Dkt. No. 8 at 20-21. There is no
11 constitutional right to counsel in a civil case unless an indigent litigant may lose his
12 physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S.
13 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional
14 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc,
15 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an
16 indigent litigant under § 1915 is within “the sound discretion of the trial court and is
17 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th
18 Cir. 1984). Plaintiff’s grounds for appointment of counsel do not amount to exceptional
19 circumstances. Accordingly, the motion is DENIED. See Agyeman v. Corrections Corp.
20 of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997);
21 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d
22 1328, 1331 (9th Cir. 1986).
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24 CONCLUSION
25 For the reasons state above, the Court orders as follows:
26 1. The following defendants shall be served at the Correctional Training
1 a. Lt. J. Lopez, Investigative Services Unit
2 b. Sgt. H. Vera, Investigative Services Unit
3 c. Sgt. J. Peffley, Investigative Services Unit
4 d. Officer Z. Brown, Investigative Services Unit
5 e. Officer S. Mora, Investigative Services Unit
6 f. Officer C. Bravo, Investigative Services Unit
7 g. Officer H. Madsen, Investigative Services Unit
8 h. Officer B. Barron, Investigative Services Unit
9 i. Officer H. Orozco, Investigative Services Unit
10 j. Officer V. Garcia, Investigative Services Unit
11 k. Officer C. Vergara, Investigative Services Unit
12 l. Officer C. Mell, Investigative Services Unit – K9
13 Service on the listed defendant(s) shall proceed under the California Department of
14 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from
15 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve
16 on CDCR via email the following documents: the operative complaint and any attachments
17 thereto, Dkt. No. 8, this order of service, and a CDCR Report of E-Service Waiver form.
18 The clerk also shall serve a copy of this order on the plaintiff.
19 No later than 40 days after service of this order via email on CDCR, CDCR shall
20 provide the court a completed CDCR Report of E-Service Waiver advising the court which
21 defendant(s) listed in this order will be waiving service of process without the need for
22 service by the United States Marshal Service (USMS) and which defendant(s) decline to
23 waive service or could not be reached. CDCR also shall provide a copy of the CDCR
24 Report of E-Service Waiver to the California Attorney General’s Office which, within 21
25 days, shall file with the court a waiver of service of process for the defendant(s) who are
26 waiving service.
1 each defendant who has not waived service according to the CDCR Report of E-Service
2 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205
3 forms and copies of this order, the summons and the operative complaint for service upon
4 each defendant who has not waived service. The clerk also shall provide to the USMS a
5 copy of the CDCR Report of E-Service Waiver.
6 2. No later than ninety-one (91) days from the date this order is filed,
7 Defendants shall file a motion for summary judgment or other dispositive motion with
8 respect to the claims in the complaint found to be cognizable above.
9 a. Any motion for summary judgment shall be supported by adequate
10 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
11 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor
12 qualified immunity found, if material facts are in dispute. If any Defendant is of the
13 opinion that this case cannot be resolved by summary judgment, he shall so inform the
14 Court prior to the date the summary judgment motion is due.
15 b. In the event Defendants file a motion for summary judgment, the
16 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate
17 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See
18 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012).
19 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court
20 and served on Defendants no later than twenty-eight (28) days from the date Defendants’
21 motion is filed.
22 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and
23 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment
24 must come forward with evidence showing triable issues of material fact on every essential
25 element of his claim). Plaintiff is cautioned that failure to file an opposition to
26 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to
1 || Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18
2 || F.3d 651, 653 (9th Cir. 1994).
3 4, Defendants shall file a reply brief no later than fourteen (14) days after
4 || Plaintiff's opposition is filed.
5 5. The motion shall be deemed submitted as of the date the reply brief is due.
6 || No hearing will be held on the motion unless the Court so orders at a later date.
7 6. All communications by the Plaintiff with the Court must be served on
8 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true
9 || copy of the document to Defendants or Defendants’ counsel.
10 7. Discovery may be taken in accordance with the Federal Rules of Civil
11 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
2 Rule 16-1 is required before the parties may conduct discovery.
E 13 8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the
S 14 || court informed of any change of address and must comply with the court’s orders in a
3 15 || timely fashion. Failure to do so may result in the dismissal of this action for failure to
16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b).
5 17 9. Extensions of time must be filed no later than the deadline sought to be
5 18 || extended and must be accompanied by a showing of good cause.
19 IT ISSO ORDERED.
20 || Dated: _ February 23,2023. feiinfhacncen
BETH LABSON FREEMAN
71 United States District Judge
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