affirming denial of counsel based on claims that pro se plaintiff “may well 1 have fared better-particularly in the realms of discovery and the securing of expert 2 testimony.”
How later courts described this case
- affirming denial of counsel based on claims that pro se plaintiff “may well 1 have fared better-particularly in the realms of discovery and the securing of expert 2 testimony.”
- “Within the prison context, a viable claim of First Amendment retaliation 19 entails five basic elements: (1) An assertion that a state actor took some adverse action 20 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 21 (4
- “Before a . . . court may 13 exercise personal jurisdiction over a defendant, the procedural requirement of service of 14 summons must be satisfied.”
- finding allegations that officers filed false disciplinary charges 24 against prisoner after he filed grievances complaining of their racial discrimination 25 “sufficient[] [to] plead[] a First Amendment retaliation” claim
Written by the judges who cited it.
The opinion
1
2
3
4
5 UNITED STATES DISTRICT COURT
6 SOUTHERN DISTRICT OF CALIFORNIA
7
8 CHARLES RAY CATHY, Case No.: 3:22-cv-01565-GPC-JLB
CDCR #V-39913,
9
ORDER:
Plaintiff,
10
vs. (1) DENYING MOTION TO
11
APPOINT COUNSEL
PALMA, Correctional Officer;
12 [ECF No. 14]
MORALES, Correctional Officer;
13 V. DORSEY, Correctional Officer;
AND
A. AMAT, Correctional Officer;
14
E. URIBE, Correctional Officer;
(2) DIRECTING CLERK TO ISSUE
15 J. ANGULO, Correctional Sergeant;
SUMMONS AND WAIVER OF
ALVAREZ, Correctional Officer;
16 SERVICE FORMS FOR NEWLY
M. TRIMBLE, Correctional Officer;
ADDED DEFENDANTS PURSUANT
17 GALVAN, Correctional Officer;
TO Fed. R. Civ. P. 4(b), (d)(1)
CASTRO, Correctional Officer;
18
THORPE, Correctional Officer;
19 BRADFORD, Correctional Officer;
PREA, Correctional Officer;
20
NAVARRO, Correctional Officer,
21
22 Defendants.
23
24 I. Procedural History
25 Plaintiff Charles Ray Cathy, incarcerated at Calipatria State Prison (“CAL”), is
26 proceeding pro se and filed his original civil rights Complaint pursuant to 42 U.S.C. § 1983
27 on October 7, 2022. See Compl., ECF No. 1. He is not proceeding in forma pauperis, and
28 instead has paid the filing fees required by 28 U.S.C. § 1914(a). See ECF No. 3.
1 In his original Complaint, Plaintiff alleges Defendants Palma and Morales, both
2 correctional officials employed at CAL, used excessive force against him on August 2,
3 2022, by smashing his arm in his cell door in retaliation for his having prison grievances
4 alleging racially discriminatory housing practices. See Compl,, ECF No. 1 at 4, 12, 13, Ex.
5 A, ECF No. 1-2 at 9 (Log No. 287330). Plaintiff further alleges Defendants Dorsey, Amat,
6 Uribe, and Angulo observed, but failed to intervene. See Compl., ECF No. 1 at 12‒13.
7 Finally, Plaintiff claims Defendants Alvarez, Dorsey, Angulo, Amat, and Uribe also
8 “began a campaign of retaliation” against him by engaging in a “cover up,” refusing to
9 properly document Palma’s use of force, issuing false Rules Violations Reports (“RVRs”)
10 against him, “ransack[ing] his cell” and destroying his property, and denying him a “good
11 behavior transfer” despite a 3-year record of disciplinary-free behavior after he insisted on
12 pursuing prison grievances related to the August 2, 2022 incident. See Compl. at 4, 6‒11;
13 see also Ex. A, ECF No. 1-2 at 2‒5, 7‒8 (Log Nos. 293547, 303317).
14 On January 9, 2023, the Court conducted a sua sponte screening of Plaintiff’s
15 Complaint pursuant to 28 U.S.C. § 1915A, and determined it contained “plausible First and
16 Eighth Amendment claims “sufficient to warrant … an answer.” See ECF No. 5 at 4
17 (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012)). And while the Court
18 found Plaintiff was not entitled to U.S. Marshal service pursuant to Fed. R. Civ. P. 4 (c)(3),
19 it directed the Clerk to issue a summons and provide Plaintiff with blank AO 399 Waiver
20 of Service of Summons Forms. See id. at 7. Plaintiff has procured waivers from each
21 originally-named Defendant on his own pursuant to Fed. R. Civ. P. 4(d)(1), and those
22 Defendants have since filed an Answer. See ECF No. 8 at 1; ECF No. 9-1 at 2 ¶ 2; ECF
23 No. 12.
24 In the interim, however, Plaintiff requested and the Court granted him leave to file a
25 supplemental pleading pursuant to Fed. R. Civ. P. 15(d). See ECF No. 11. On May 15,
26 2023, Plaintiff filed his Supplemental Complaint. See ECF No. 13. Plaintiff’s
27 Supplemental Complaint alleges new incidents of retaliation arising after the filing of his
28 original Complaint involving Defendants Morales, Dorsey, Amat, Uribe, Angulo, and
1 Alvarez, see id. at 1‒6, 9‒11, 16, 18, 21, 22, as well as new allegations of retaliation,
2 physical assault, and racial discrimination committed by CAL Correctional Officers M.
3 Trimble, Galvan, Castro, Thorpe, Bradford, Prea, Morales, and Navarro on March 7, 2023,
4 which Plaintiff contends occurred “in relation to” his original causes of action and “in an
5 attempt to intimidate and harass [him] for having filed this lawsuit on October 7, 2022. See
6 id. at 35‒37, 39‒43. Plaintiff also seeks the appointment of counsel. See ECF No. 14.
7 II. Motion to Appoint Counsel
8 Plaintiff requests the assistance of counsel based on the alleged complexity of his
9 claims, his ADA status, “chronic medical health problems,” limited prison library access,
10 and his eventual need to conduct a “factual investigation” and to cross-examine witnesses.
11 See id. at 1, 2.
12 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.
13 of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
14 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to
15 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of
16 America, 390 F.3d 1101, 1103 (9th Cir. 2004), Plaintiff is not proceeding in forma pauperis
17 in this case. Therefore, he has not previously demonstrated he is “unable to pay” civil
18 filing fees pursuant to 28 U.S.C. § 1915(a)(1). Nor has he shown he is “unable to afford
19 counsel” now. See 28 U.S.C. § 1915(e)(1).
20 Even assuming indigency, however, the Court’s discretion under § 1915(e)(1) may
21 be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935
22 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the Court
23 “to consider whether there is a ‘likelihood of success on the merits’ and whether ‘the
24 prisoner is unable to articulate his claims in light of the complexity of the legal issues
25 involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer,
26 560 F.3d at 970). The Court concedes that pro se litigants may be better served with the
27 assistance of counsel—but that is not the test. See Rand v. Rowland, 113 F.3d 1520, 1525
28 (9th Cir. 1997) (affirming denial of counsel based on claims that pro se plaintiff “may well
1 have fared better-particularly in the realms of discovery and the securing of expert
2 testimony.”), withdrawn in part on reh’g en banc and overruled on other grounds, 154
3 F.3d 952 (9th Cir. 1998). “Concerns regarding investigation and discovery are … not
4 exceptional factors,” and while a pro se litigant “may not have vast resources or legal
5 training,” these are simply among the commonly shared “types of difficulties encountered
6 by many pro litigants.” Wells v. Washington State Dep’t of Corr., No. C13-234 RJB/KLS,
7 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013).
8 Here, nothing in Plaintiff’s Complaint or Supplemental Complaint suggest he is
9 incapable of articulating the factual basis for his First or Eighth Amendment claims which
10 are common to prison litigation and appear “relatively straightforward.” Harrington, 785
11 F.3d at 1309. In fact, the Court finds, based on its initial screening of Plaintiff’s pleadings,
12 that he is fully capable of pleading plausible claims for relief. See Meeks v. Nunez, No.
13 3:13-CV-0973-GPC (BGS), 2017 WL 476425, at *3 (S.D. Cal. Feb. 6, 2017) (denying
14 ADA inmate appointment of counsel where inmate “successfully survived screening,” and
15 had submitted motions “drafted with clarity and [asserting] proper arguments.”); Garcia v.
16 Blahnik, Civil Case No. 3:14-cv-00875-LAB-BGS, 2016 WL 4269561, at *3 (S.D. Cal.
17 Aug. 15, 2016) (finding no “exceptional circumstances warranting a judicial request for a
18 voluntary legal counsel” where Plaintiff’s psychiatric disorder and limited access to the
19 law library did not “prevent[] him from filing a well-articulated complaint and other
20 motions with the Court.”).
21 In addition, while Plaintiff may have sufficiently pleaded plausible retaliation and
22 excessive force claims at this preliminary stage of the proceedings, he has yet to
23 demonstrate and it is too soon to tell whether he is likely to succeed on the merits.
24 Harrington, 785 F.3d at 1309; Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014)
25 (affirming denial of counsel where prisoner could articulate his claims in light of the
26 complexity of the issues involved, but did not show likelihood of succeed on the merits);
27 see also Dickey v. Strayhorn, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 3118797,
28 at *1 (S.D. Cal. July 21, 2017), reconsideration denied, Civil Case No. 3:17-cv-00546-
1 JLS-JLB, 2017 WL 4271975 at *1 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has
2 a likelihood of success at trial, Plaintiff must do more than merely allege that one of his
3 constitutional rights was violated. He must provide evidence to the effect that he has a
4 likelihood of success on the merits of his allegations.”); Torbert v. Gore, Civil Case No.
5 3:14-cv-02991-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff
6 that provides no evidence of his likelihood of success at trial fails to satisfy the first factor
7 of the [exceptional circumstances] test.”).
8 For these reasons, the Court finds no “exceptional circumstances” exist at this
9 preliminary stage of the case and DENIES Plaintiff’s Motion to Appoint Counsel (ECF
10 No. 14) without prejudice.
11 III. Screening of Supplemental Complaint pursuant to 28 U.S.C. § 1915A
12 As the Court noted in its May 2, 2023 Order, “‘Rule 15(d) permits the filing of a
13 supplemental pleading which introduces a cause of action not alleged in the original
14 complaint and not in existence when the original complaint was filed.’” Cabrera v. City
15 of Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998) (citation omitted). “[I]t follows, of
16 course, that persons participating in these new events may be added if necessary.” Griffin
17 v. County School Board, 377 U.S. 218, 226‒27 (1964). “While some relationship must
18 exist between the newly alleged matters and the subject of the original action, they need
19 not all arise out of the same transaction.” Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988)
20 While Defendants Alvarez, Amat, Angulo, Dorsey, Morales, Palma, and Uribe have
21 already filed an Answer in response to Plaintiff’s original Complaint, see ECF No. 12,
22 Plaintiff’s Supplemental Complaint contains new allegations arising after the filing of this
23 suit against some of them, and asserts related causes of action against seven additional
24 CAL Correctional Officers. Section 1915A “mandates early review—‘before docketing []
25 or [] as soon as practicable after docketing’—for all complaints ‘in which a prisoner seeks
26 redress from a governmental entity or officer or employee of a governmental entity.’”
27 Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)).
28 “On review, the court shall … dismiss the complaint, or any portion of the complaint,” if
1 it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
2 (2) seeks monetary relief from a defendant who is immune from such relief.” Olivas v.
3 Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C.
4 § 1915A(b)).
5 The Court has now reviewed Plaintiff’s Supplemental Complaint and its attached
6 exhibits and finds it too contains First Amendment retaliation and Eighth Amendment
7 excessive force claims arising on March 7, 2023 which are sufficient to survive the “low
8 threshold” set for sua sponte screening. See 28 U.S.C. § 1915A(b); Wilhelm, 680 F.3d at
9 1121, 1123 (noting that screening pursuant to § 1915A “incorporates the familiar standard
10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
11 12(b)(6)”). See ECF No. 13 at 39‒43 & Ex. L at 46‒47 (Log No. 376112); Hudson v.
12 McMillian, 503 U.S. 1, 5 (1992) (unnecessary and wanton infliction of pain violates the
13 Cruel and Unusual Punishments Clause of the Eighth Amendment); Wilkins v. Gaddy, 559
14 U.S. 34, 37 (2010) (per curiam) (for claims arising out of the use of excessive physical
15 force, the issue is “whether force was applied in a good-faith effort to maintain or restore
16 discipline, or maliciously and sadistically to cause harm.”) (citing Hudson, 503 U.S. at 7)
17 (internal quotation marks omitted); see also Rhodes v. Robinson, 408 F.3d 559, 567‒68
18 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation
19 entails five basic elements: (1) An assertion that a state actor took some adverse action
20 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action
21 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
22 reasonably advance a legitimate correctional goal.”); Watison v. Carter, 668 F.3d 1108,
23 1114‒15 (9th Cir. 2012) (finding allegations that officers filed false disciplinary charges
24 against prisoner after he filed grievances complaining of their racial discrimination
25 “sufficient[] [to] plead[] a First Amendment retaliation” claim); id at 1108 (at pleading
26 stage, the “allegation of a chronology of events from which retaliation can be inferred is
27 sufficient to survive dismissal”).
28 / / /
1 Accordingly, because Plaintiff’s Supplemental Complaint alleges plausible First and
2 Eighth Amendment claims for relief related to his original causes of action and arising after
3 the filing of his original Complaint that are “sufficient to warrant . . . an answer,” Wilhelm,
4 680 F.3d at 1123, in order to ensure the “effective and efficient service of civil process” in
5 this case, the Court will direct the Clerk to issue a summons as to Plaintiff’s Supplemental
6 Complaint upon newly added Defendants M. Trimble, Galvan, Castro, Thorpe, Bradford,
7 Prea, and Navarro. See Volpe v. JP Morgan Chase Bank, No. 8:22-CV-01054-JWH-DFM,
8 2022 WL 3643754, at *1 (C.D. Cal. June 21, 2022); see also Fed. R. Civ. P. 4(b), 4(c)(1).
9 Because Plaintiff is not entitled to U.S. Marshal service pursuant to Fed. R. Civ. P.
10 4(c)(3), he “remains responsible for timely service” upon the newly added parties as
11 required by Rule 4. See Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991); Omni
12 Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a . . . court may
13 exercise personal jurisdiction over a defendant, the procedural requirement of service of
14 summons must be satisfied.”). Defendants subject to service under Fed. R. Civ. P. 4(e),
15 (f), or (h) “ha[ve] a duty to avoid unnecessary expenses of serving the summons,” but it is
16 the Plaintiff who must “notify [each] defendant that an action has been commenced,” and
17 request that the defendant “waive service of summons.” See Fed. R. Civ. P. 4(d)(1). The
18 requirements for providing that notice and requesting waivers from each named defendant
19 are explained in Fed. R. Civ. P. 4(d)(1)(A), and Waiver of Service of Summons (AO 399)
20 Forms sufficient to satisfy Rule 4(d) are available on the Court’s website at
21 https://www.casd.uscourts.gov/_assets/pdf/forms/Waiver%20of%20 Service%20of%20
22 Summons.pdf.
23 As before, the Court presumes Plaintiff’s incarceration prohibits his access to those
24 forms; therefore, it will again direct the Clerk of Court to provide them to him together
25 with the summons, and certified copies of his Supplemental Complaint, so that he may
26 attempt to serve the newly added Defendants by requesting waivers on his own. Pursuant
27 to Fed. R. Civ. P. 4(d)(1), Plaintiff must provide by “first-class mail or other reliable
28 means,” a copy of his Supplemental Complaint, two (2) copies of the waiver forms
1 provided, and a prepaid means for returning the waiver form to each newly named
2 Defendant. See Fed. R. Civ. P. 4(d)(1).
3 IV. Conclusion and Orders
4 For the reasons explained, the Court DENIES Plaintiff’s Motion to Appoint Counsel
5 (ECF No. 14) and DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s
6 Supplemental Complaint upon newly added Defendants M. Trimble, Galvan, Castro,
7 Thorpe, Bradford, Prea, and Navarro pursuant to Fed. R. Civ. P. 4(b). The Clerk will
8 forward this summons to Plaintiff together with seven (7) certified copies of his
9 Supplemental Complaint (ECF No. 13) and fourteen (14) blank AO 399 Waiver of Service
10 of Summons Forms so that he may notify these Defendants that an action has been
11 commenced against them and request each of them to waive personal service pursuant to
12 Fed. R. Civ. P. 4(d)(1).
13 Within 90 days of this Order, Plaintiff must properly execute service upon each of
14 these newly added Defendants either by filing with the Clerk of the Court an executed
15 waiver on behalf of each of them, or by filing proof of personal service of both the
16 Supplemental Complaint and summons upon each new Defendant pursuant to Fed. R. Civ.
17 P. 4(l) should that new Defendant fail to sign and return his properly requested waiver.
18 Should Plaintiff fail to properly serve the newly-named Defendants within 90 days, the
19 Court will order him to show cause why the claims alleged in his Supplemental Complaint
20 / / /
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1 || against these parties should not be dismissed without prejudice pursuant to Fed. R. Civ. P.
2 ||4(m).!
3 IT IS SO ORDERED.
4 ||Dated: May 25, 2023 (2. (0
5 Hon. Gonzalo P. Curtel
6 United States District Judge
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23 Should the newly-added Defendants fail, without good cause, to sign and return the waivers Plaintiff
properly requests, they may be held responsible for costs later incurred in making personal service, and
24
regardless of whether they ultimately prevail. See Fed. R. Civ. P. 4(d)(2); Est. of Darulis v. Garate, 401
25 || F.3d 1060, 1064 (9th Cir. 2005). Should these Defendants timely waive service, however, they need not
serve an answer to Plaintiff’s Supplemental Complaint until 60 days after the request was sent. See Fed.
26 Civ. P. 4(d)(3); 42 U.S.C. § 1997e(g)(2) (while defendants may occasionally be permitted to “waive
the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional
27 || facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C.
y Pp &P
28 § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that
the plaintiff has a “reasonable opportunity to prevail on the merits,” defendants are required to respond).