Petition for Writ of Certiorari — Mitchell Taebel, Petitioner v. Douglas A. Ducey, Governor of Arizona, et al.

Supreme Court briefApr 10, 2020

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MITCHELL TAEBEL,

Plaintiff - Appellant,

DOUGLAS A. DUCEY, named as AZ

Governor; et al.,

No. 19-16169

D.C. No. 2:19-cv-00323-JAT-CDB

U.S. District Court for Arizona,

Phoenix

ORDER

Defendants - Appellees.

A review of the docket demonstrates that appellant has failed to respond to

the February 12, 2020 order of this court.

Pursuant to Ninth Circuit Rule 42-1, this appeal is dismissed for failure to

prosecute.

This order served on the district court shall, 21 days after the date of the

order, act as the mandate of this court.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Cyntharee K. Powells

Deputy Clerk

Ninth Circuit Rule 27-7

General Docket

United States Court of Appeals for the Ninth Circuit

Docketed: 06/10/2019

Court of Appeals Docket#: 19-16169

Nature of Suit: 3555 Prison Condition

Mitchell Taebel v. Douglas Ducey, et al

Appeal From: U S. District Court for Arizona,

Phoenix Fee Status: IFP

Case Type Information:

1) prisoner

2) state

3) civil rights

Originating Court Information:

District: 0970-2 : 2:19-cv-00323-JAT-CDB

Trial Judge: James A. Teilborg, Senior District Judge

Date Filed: 01/18/2019

Date Order/Judgment EOD:

Date Order/Judgment:

05/03/2019

Prior Cases:

18-16755

19-15023

Date Filed: 09/14/2018

Date Filed: 01/04/2019

Date NOA Filed:

05/31/2019

Date Disposed: 02/27/2019

Date Disposed: 04/23/2019

Disposition: Dismissed - Judge Order

Current Cases:

None

MITCHELL TAEBEL (State Prisoner: T430659)

Plaintiff-Appellant,

Mitchell Taebel

[NTC Pro Se]

LBJ - LOWER BUCKEYE JAIL

Maricopa County Jail

3250 W. Lower Buckeye

Phoenix, AZ 85009

DOUGLAS A. DUCEY, named as AZ Governor

Defendant - Appellee,

THELDA WILLIAMS, Mayor of Phoenix

Defendant - Appellee,

SPURGIN, 4th Ave Jail Capt.

Defendant - Appellee,

MICELLI, 1st Shift Commander

Defendant - Appellee,

HALLETT, 2nd Shift Commander

Defendant - Appellee,

BALLARD, 3rd Shift Commander

Defendant - Appellee,

WIERSHEM, 1st Shift Commander

Defendant - Appellee,

EVERETT, 2nd Shift Commander

Defendant - Appellee,

HERNANDEZ, 3rd Shift Commander

Defendant - Appellee,

MARK BRNOVICH, Attorney General

Defendant - Appellee,

Date Rec'd COA:

06/10/2019

Byron Jeffords Babione, Esquire

Direct: 602-542-7690

[COR LD NTC Assist US Attorney]

Arizona Attorney General's Office

2005 N. Central Avenue

Phoenix, AZ 85004

06/10/2019

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL AND PRO SE APPELLANT.

SEND MQ: No. The schedule is set as follows: Appellant Mitchell Taebel opening brief due 07/30/2019.

Appellees Ballard, Mark Brriovich, Attorney General, Douglas A. Ducey, Everett, Hallett, Hernandez,

Micelli, William Gerard Montgomery, Paul Penzone, Spurgin, Unknown Party, Wiershem and Thelda

Williams answering brief due 08/29/2019. Appellant's optional reply brief is due 21 days after service of

the answering brief. [11325160] (JBS) [Entered: 06/10/2019 01:28 PM]

25 pg, 608.91 KB

Filed Appellant Mitchell Taebel motion to proceed In Forma Pauperis. Deficiencies: None. Served on

06/20/2019. [11344118] (QDL) [Entered: 06/25/2019 02:36 PM]

06/24/2019 □ 2_

8 pg, 334.4 KB

06/25/2019

Filed clerk order (Deputy Clerk: DA): A review of the record suggests that this court may lack jurisdiction

over this appeal because the May 31,2019 district order challenged in this appeal dismissed the

complaint with leave to amend. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en

banc) (dismissal of complaint with leave to amend is not appealable). Within 21 days after the date of this

order, appellant shall move for voluntary dismissal of the appeal or show cause why it should not be

dismissed for lack of jurisdiction. If appellant elects to show cause, a response may be filed within 10 days

after service of the memorandum. If appellant does not comply with this order, the Clerk shall dismiss this

appeal pursuant to Ninth Circuit Rule 42-1. Briefing and all pending motions are suspended pending

further order of the court. [11344247] (CKP) [Entered: 06/25/2019 03:21 PM]

□

2 pg, 132.91 KB

07/01/2019

Filed Appellant Mitchell Taebel motion for emergency injunction. Deficiencies: None. Served on

06/26/2019. [11352652] (QDL) [Entered: 07/02/2019 03:46 PM]

□ _4

363 pg, 15.02 M

07/05/2019

07/11/2019

330 pg, 22.5 MB

Filed Appellant Mitchell Taebel supplemental motion for emergency injunction. Deficiencies: None. Served

on 06/28/2019. [11355583] (QDL) [Entered: 07/05/2019 04:50 PM]

□ 6

24 pgT748.i8 KB

Filed Appellant Mitchell Taebel response to order to show cause dated 06/25/2019. Served on

07/05/2019. [11361551] (QDL) [Entered: 07/12/2019 09:41 AM]

□ jj_

07/15/2019 □ j_

474 pg, 21.33 MB

07/19/2019

Filed Appellant Mitchell Taebel supplemental response to order to show cause dated 06/25/2019. Served

on 07/15/2019. [11370059] (QDL) [Entered: 07/19/2019 02:59 PM]

□ 8_

49 pg, 1.52 MB

07/29/2019 □ _9_

Filed Appellant Mitchell Taebel supplemental response to order to show cause dated 06/25/2019. Served

on 07/10/2019. [11365713] (QDL) [Entered: 07/16/2019 04:47 PM]

£ Filed Appellant Mitchell Taebel urgent motion for injunction. Deficiencies: None. Served on 07/24/2019.

[11380008] (QDL) [Entered: 07/29/2019 03:34 PM]

13 pg, 869.95 KB

07/31/2019

□ Ji0_

273 pg, 7.61 MB

08/28/2019

-t~ Filed Appellant Mitchell Taebel supporting exhibits. Paper filing deficiency: None. Served on 07/25/2019.

[11383362] (QDL) [Entered: 07/31/2019 04:38 PM]

Filed order (MILAN D. SMITH, JR. and MARK J. BENNETT) Appellant's motions for emergency injunctive

relief (Docket Entry Nos. [4], [5], [9]) are denied. The court will not entertain any motions for

reconsideration, clarification, or modification of these denials on an emergency basis. Briefing remains

stayed pending disposition of the June 25, 2019 order to show cause. [11413248] (JBS) [Entered:

08/28/2019 10:31 AM]

□

1 pg, 100.89 KB

09/05/2019

□ j2_

407 pg, 29.06 MB

09/12/2019

Supreme Court Case Info

Case number: 19-5906

Filed on: 09/06/2019

Cert Petition Action 1: Pending

[11429517] (RR) [Entered: 09/12/2019 11:42 AM]

Qji

1 pg, 53.51 KB

09/19/2019

□ _|4_

316 pg. 33.4 MB

Filed Appellant Mitchell Taebel motion to reconsider Panel order of the Court filed on 08/28/2019.

Deficiencies: None. Served on 08/29/2019. [11422409] (QDL) [Entered: 09/05/2019 02:11 PM]

5 Filed Appellant Mitchell Taebel motion for injunction. Deficiencies: None. Served on 09/11/2019.

[11437097] (QDL) [Entered: 09/19/2019 11:13 AM]

-f'Filed Appellant Mitchell Taebel supplemental motion for rule 8 injunction. Deficiencies: None. Served on

267 Pg72l.08 mb 09/18/2019. [11450284] (QDL) [Entered: 10/01/2019 02:05 PM]

09/30/2019 Q 15

10/07/2019

OJS.

373 pg, 22.43 MB

10/10/2019

□ J7_

2 pg. 136.33 KB

Filed Appellant Mitchell Taebel supplemental motion for rule 8 injunction. Deficiencies: None. Served on

10/02/2019. [11456529] (QDL) [Entered: 10/07/2019 02:19 PM]

Filed order (Appellate Commissioner): On June 25, 2019, this court issued an order to show cause

because the May 31,2019 notice of appeal challenged a May 3, 2019 district order dismissing the

complaint with leave to amend. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en

banc) (dismissal of complaint with leave to amend is not appealable). A review of appellant’s responses to

the order to show cause and the district court docket reflect that, on July 31,2019, the district court

entered a final judgment. Accordingly, the June 25, 2019 order to show cause is discharged, and this

appeal from the district court's May 3, 2019 order shall proceed. See Hall v. N. Am. Van Lines, Inc., 476

F.3d 683, 686 (9th Cir. 2007) (deeming a premature appeal from a dismissal with leave to amend to have

been taken from the final judgment where the district court entered judgment after the plaintiff declined to

amend). The pending motions to proceed in forma pauperis, for an injunction, and for reconsideration of

the court’s August 28, 2019 order will be addressed by separate order. Briefing remains stayed pending

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Date Filed: 01/28/2019

Page 1 of 14

ASH

IN THE UNITED STATES DISTRICT COURT

EP:

FOR THE DISTRICT OF ARIZONA

No. CV 19-00323-PHX-JAT (ESW)

Mitch Taebel,

Plaintiff,

ORDER

Douglas A. Ducey,

Defendant.

On or about January 2, 2019, Plaintiff Mitch Taebel, who is confined in a Maricopa

County Jail, filed a pro se Complaint in Maricopa County Superior Court. Defendant was

served shortly thereafter, and, on January 18,2019, timely removed the matter to this Court

and paid the filing fee. Subsequently, Defendant filed a Motion for Extension of Time to

Respond to Complaint (Doc. 4). The Court will dismiss the Complaint with leave to

amend, and deny the Motion as moot.

Jurisdiction

A defendant may remove any civil action brought in state court over which the

federal court would have original jurisdiction. 28 U.S.C. §1441(a). That is, a civil action

that could have originally been brought in federal court may be removed from state to

federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has

original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of

JDDL

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the United States.” 28 U.S.C. § 1331.

The Complaint in this case facially supports the existence of federal subject matter

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jurisdiction because

plaintiff alleges violations of his federal constitutional rights. 28

timely removed.

Further, the case was

U.S.C. § 1441(a).

Accordingly, the Court will accept jurisdiction over this matter.

28 U.S.C. § 1446(b).

Complaint Not on Court-Approved Form

Pursuant to Local Rule of Civil Procedure 3.4, Plaintiff is required to use a court-

approved form when he files a pro se civil rights complaint. Plaintiffs Complaint is not

on the court’s approved form. While the Court may, in its discretion, forgo the requirement

that a plaintiff use a court-approved form, see Local Rule of Civil Procedure 3.4, the Court

will require Plaintiff to use the court-approv ed form here because the Complaint does not

substantially comply with the court-approved form. Accordingly, the Court will dismiss

the Complaint, with leave to amend, for failure to comply with Local Rule 3.4.1

Leave to Amend

Within 30 days, Plaintiff may submit a first amended complaint to cure the

The Clerk of Court will mail Plaintiff a court-approved form

deficiencies outlined above.

a first amended complaint. If Plaintiff fails to use the court-approved form,

to use for filing

the amended complaint and dismiss this action without further notice

the Court may strike

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lit

to Plaintiff.

“First

Plaintiff must clearly designate on the face of the document that it is the

Amended Complaint.” The first amended complaint must be retyped or rewritten m its

entirety on the court-approved form and may not incorporate any part of any previous

complaint by reference. Plaintiff may include only one claim per count.

A first amended complaint supersedes any previous complaints. Ferdik v. Bonzelet,

,4262 (9th Cir. 1992); HalRoach Studios v. Richard Feiner & Co. , 896 F.2d

963 F.2d 1258

. After amendment, the Court will treat any previous complaint

1542,1546 (9th Cir. 1990)

as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised m a previous

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Additional material

from this filing is

available in the

Clerk's Office.

Case 2:19-cv-00323-JAT~CDB Document 15 Filed 05/03/19 Page 1 of 21

ASH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV 19-00323-JAT(CDB)

Mitch Taebel,

Plaintiff,

ORDER

Douglas A. Ducey, et al.,

Defendants.

On or about January 2,2019, Plaintiff Mitch Taebel,1 who is confined in a Maricopa

County Jail, filed a pro se Complaint in Maricopa County Superior Court. Defendant was

served shortly thereafter, and, on January 18, 2019, timely removed the matter to this Court

and paid the filing fee. By Order dated January 28, 2019, the Court accepted jurisdiction,

but dismissed the Complaint for failure to comply with Rule 3.4 of the Local Rules of Civil

Procedure. The Court gave Plaintiff 30 days to file an amended complaint that cured the

JDDL

Plaintiff is a frequent litigant in this Court. In the past year, Plaintiff has filed at

least 14 cases with this court. See Taebel v. Montgomery, case no. 2:18-CV-01354-PHXSRB (ESW) (D. Ariz. 2018); Taebel v. Sonberg, case no. 2:18-CV-00046-PHX-GMS (D.

Ariz. 2018); Taebel v. Harder, case no. 2:18-CV-01183-PHX-JAT (ESW) (D. Ariz. 2018);

Taebel v. Stanton, case no. 2:18-CV-01569-PHX-JAT (ESW) (D. Ariz. 2018); Taebel v.

Morton, case no. 2:18-CV-01653-PHX-JAT (ESW) (D. Ariz. 2018); Taebel v. Maricopa

County Sheriff’s Office, case no. 2:18-CV-01654-PHX-JAT(ESW) (D. Ariz. 2018); Taebel

v. Haas, case no. 2:18-CV-01655-PHX-JAT (ESW) (D. Ariz. 2018); Taebel v. Russo, case

no. 2:18-CV-PHX-JAT (CDB) (D. Ariz. 2018); Taebel v. Stanton, case no. 2:18-01167PHX-JAT (ESW) (D. Ariz. 2018); Taebel v. Harder, case no. 2:18-CV-01183-PHX-JAT

(ESW) (D. Ariz. 2018); Taebel v. Maricopa County Sheriff’s Office, case no. 2:18-CV02496-PHX-JAT (ESW) (D. Ariz. 2018); Taebel v. Penzone, case no. 2:18-CV-01122PHX-JAT (ESW) (D. Ariz. 2018); Taebel v. Castillo, case no. 2:18-CV-02576-PHX-JAT

(ESW) (D. Ariz. 2018); Taebel v. Teilborg, case no. 2:19-CV-02594-PHX-JAT (ESW) (D.

Ariz. 2019).

Case 2:19-cv-00323-JAT-CDB Document 15 Filed 05/03/19 Page 2 of 21

deficiencies identified in the Order.

has also filed the following:

a Motion for Change of Judge (Doc. 6);

a Motion for Service of Process (Doc. 8);

a “Motion for Emergency Order Per Rule 65” (Doc. 10);

a “Motion for Urgent Order Rule 65(b)” (Doc. 11);

a Motion for Preliminary Injunction (Doc. 12); and

a Motion for Appointment of Counsel (Doc. 13).

JTDDL

On March 1, 2019, Plaintiff filed his First Amended Complaint (Doc. 7). Plaintiff

Motion to Change Judge

Title 28, Section 455(a) provides that a United States judge “shall disqualify”

himself in any proceeding in which his “impartiality might reasonably be questioned.”

Section 455(b)(1) provides that a judge must also disqualify himself where he “has a

personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding^]” Recusal pursuant to § 455(b) is required

only if the bias or prejudice stems from an extra-judicial source, not from conduct or rulings

during the course of the proceedings. See Hasbrouckv. Texaco, Inc., 842 F.2d 1034, 1046

(9th Cir. 1987), aff’d, 496 U.S. 543 (1990); United States v. Studley, 783 F.2d 934, 939

(9th Cir. 1986) (judge’s prior adverse rulings are insufficient cause for recusal). “[JJudicial

rulings alone almost never constitute [a] valid basis for a bias or partiality motion.” Liteky

v. United States, 114 S. Ct. 1147, 1157 (1994). Adverse rulings should be appealed; they

do not form the basis for a recusal motion. Further, where the judge forms opinions in the

courtroom, either in the current proceeding or in a prior proceeding, these opinions “do not

constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism

or antagonism that would make fair judgment impossible.” Id.

Title 28, Section 144 provides for recusal where a party files a “timely and sufficient

affidavit that the judge before whom the matter is pending has a personal bias or prejudice

either against him or in favor of any adverse party.” The affidavit must state the facts and

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Case 2:19-cv-00323-JAT~CDB Document 15 Filed 05/03/19 Page 3 of 21

reasons for the belief that the bias or prejudice exists. 28 U.S.C. § 144. If the judge finds

the affidavit timely and legally sufficient, the judge must proceed no further and another

judge must be assigned to hear the motion. Id.; United States v. Sibla, 624 F.2d 864, 867

(9th Cir. 1980).

JDDL

Here, Plaintiff has not demonstrated that recusal pursuant to either §455 or §144 is

warranted.

partiality might reasonably be questioned. Nor has Plaintiff identified any extra-judicial

source of any bias or prejudice. Further, Plaintiff has failed to provide the affidavit required

by § 144, or to state the facts and reasons, under oath, for why he believes that the

undersigned has any bias or prejudice against him. Accordingly, recusal is not appropriate,

and Plaintiffs Motion will be denied.

II.

Plaintiff has not alleged any evidence to support that the undersigned’s

Statutory Screening of Prisoner Complaints

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

against a governmental entity or an officer or an employee of a governmental entity. 28

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

has raised claims that are legally frivolous or malicious, that fail to state a claim upon which

relief may be granted, or that seek monetary relief from a defendant who is immune from

such relief. 28 U.S.C. § 1915A(b)(l)-(2).

A pleading must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does

not demand detailed factual allegations, “it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

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Case 2:19-cv-00323-JAT-CDB Document 15 Filed 05/03/19 Page 4 of 21

JDDL

misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

relief [is]... a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. Thus, although a plaintiffs specific factual

allegations may be consistent with a constitutional claim, a court must assess whether there

are other “more likely explanations” for a defendant’s conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342

(9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent

standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam)).

If the Court determines that a pleading could be cured by the allegation of other

facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

Plaintiffs First Amended Complaint will be dismissed for failure to state a claim, but

because it may possibly be amended to state a claim, the Court will dismiss it with leave

to amend.

III.

First Amended Complaint

In his First Amended Complaint, Plaintiff names 12 different Defendants, including

the “AZ Governor,” the “AZ Attorney General,” the “Mayor of Phoenix,” and numerous

“Commanders” at the Maricopa County Fourth Avenue Jail. In Count One, Plaintiff

alleges a claim for “unlawful restriction[] on marriage licenses,” which he states is related

to basic necessities, access to the courts, and the exercise of religion. In Count Two,

Plaintiff alleges a claim for “unlawful restriction on mail,” which he states is related to

basic necessities, mail, and access to the courts. In Count Three, Plaintiff alleges a claim

for “unlawful restriction^ on visitation,” which he states is related to basic necessities, and

the exercise of religion. In Count Four, Plaintiff alleges a claim related to “the quality of

the food,” which he states arises under the “privileges and immunities” clause and

constitutes “cruel and unusual punishment.” In Count Five, Plaintiff alleges a claim of

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Case 2:19-cv-00323-JAT--CDB Document 15 Filed 05/03/19 Page 5 of 21

“inadequate legal resources.”

“unconstitutional restrictions on access of journalists to defendants.”

injunctive relief and “one hundred billion USD” in damages.

IV.

Plaintiff seeks

Failure to State a Claim

To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

(2) under color of state law (3) deprived him of federal rights, privileges or immunities and

(4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.

2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278,

1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury

as a result of the conduct of a particular defendant and he must allege an affirmative link

between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-

72, 377 (1976).

JDDL

And in Count Six, Plaintiff alleges a claim for

Plaintiff makes no allegations against any named Defendant. Accordingly, the First

Amended Complaint will be dismissed.

Leave to Amend

Within 30 days, Plaintiff may submit a second amended complaint to cure the

deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form

to use for filing a second amended complaint. If Plaintiff fails to use the court-approved

form, the Court may strike the second amended complaint and dismiss this action without

further notice to Plaintiff.

Plaintiff must clearly designate on the face of the document that it is the “Second

Amended Complaint.” The second amended complaint must be retyped or rewritten in its

entirety on the court-approved form and may not incorporate any part of the original

Complaint or First Amended Complaint by reference. Plaintiff may include only one claim

per count.

A second amended complaint supersedes the original Complaint and First Amended

Complaint. Ferdikv. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v.

RichardFeiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court

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Case 2:19-cv-00323-JAT-CDB Document 15 Filed 05/03/19 Page 6 of 21

JDDL

will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik,

963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First

Amended Complaint and that was voluntarily dismissed or was dismissed without

prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa

County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name

of the Defendant who violated the right; (3) exactly what that Defendant did or failed to

do; (4) how the action or inaction of that Defendant is connected to the violation of

Plaintiffs constitutional right; and (5) what specific injury Plaintiff suffered because of

that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377.

Plaintiff must repeat this process for each person he names as a Defendant. If

Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific

injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for

failure to state a claim.

Defendants has violated a constitutional right are not acceptable and will be

dismissed.

Conclusory allegations that a Defendant or group of

Plaintiff should be aware that the right of meaningful access to the courts prohibits

officials from actively interfering with inmates’ attempts to prepare or file legal documents.

Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right

to bring petitions or complaints to federal court and not a right to discover such claims or

even to ligate them effectively once filed with a court. Id. at 354. The right “guarantees

no particular methodology but rather the conferral of a capability-the capability of bringing

contemplated challenges to sentences or conditions of confinement before the courts.” Id.

at 356.

As a matter of standing, for an access-to-courts claim, a plaintiff must show that he

■ 27

suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show

actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the

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Case 2:19-cv-00323-JAT--CDB Document 15 Filed 05/03/19 Page 7 of 21

defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim

that he wished to present. Id. at 352-53.

“[T]he injury requirement is not satisfied by just any type of frustrated legal claim.”

Id. at 354. The right of access to the courts “does not guarantee inmates the wherewithal

to transform themselves into litigating engines capable of filing everything from

shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous claim

must be a direct or collateral attack on the inmate’s sentence or a challenge to the conditions

of his confinement. Id. “Impairment of any other litigating capacity is simply one of the

incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id.

(emphasis in original).

Further, a pretrial detainee has a right under the Due Process Clause of the

Fourteenth Amendment to be free from punishment prior to an adjudication of guilt. Bell

v. Wolfish, 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food,

clothing, shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v.

United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237,

1246 (9th Cir. 1982)). To state a claim of unconstitutional conditions of confinement

against an individual defendant, a pretrial detainee must allege facts that show:

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(i) the defendant made an intentional decision with respect to

the conditions under which the plaintiff was confined;

(ii) those conditions put the plaintiff at substantial risk of

suffering serious harm; (iii) the defendant did not take

reasonable available measures to abate that risk, even though a

reasonable official in the circumstances would have

appreciated the high degree of risk involved—making the

consequences of the defendant’s conduct obvious; and (iv) by

not taking such measures, the defendant caused the plaintiffs

injuries.

Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

Whether the conditions and conduct rise to the level of a constitutional violation is

an objective assessment that turns on the facts and circumstances of each particular case.

Id.-, Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis

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level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the ‘“mere lack

of due care by a state official’ does not deprive an individual of life, liberty, or property

under the Fourteenth Amendment.” Castro v. County ofLos Angeles, 833 F.3d 1060, 1071

(9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a

plaintiff must “prove more than negligence but less than subjective intent—something akin

to reckless disregard.” Id.

Additionally, prisoners retain the First Amendment right directing that no law shall

prohibit the free exercise of religion. OLone v. Estate of Shabazz, 482 U.S. 342, 348

(1987); Henderson v. Terhune, 379 F.3d 709 (9th Cir.2004). To state a First Amendment,

free-exercise-of-religion claim, a plaintiff must allege that a defendant burdened the

practice of plaintiffs religion by preventing him from engaging in a sincerely held religious

belief and that the defendant did so without any justification reasonably related to

legitimate penological interests. Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008).

Plaintiff should also be aware that prisoners have “a First Amendment right to send

and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam) (citing

Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)).

regulations which impinge on an inmate’s constitutional rights if those regulations are

“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987).

VI.

Motions

Plaintiffs Motion for Service is premature. As noted, the Court is required to screen

complaints brought by prisoners seeking relief against a governmental entity or an officer

or an employee of a governmental entity. 28 U.S.C. § 1915A(a). If and when Plaintiff

files an amended complaint that sufficiently states a claim against one or more Defendants,

the Court will direct that service be made. In the meantime, however, Plaintiffs Motion

will be denied.

Motion for Service

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However, a prison may adopt

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Motion for Counsel

There is no constitutional right to the appointment of counsel in a civil case. See

Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In

proceedings in forma pauperis, the court may request an attorney to represent any person

unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C.

§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional

circumstances requires an evaluation of the likelihood of success on the merits as well as

the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal

issue involved. Id. “Neither of these factors is dispositive and both must be viewed

together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328,

1331 (9th Cir. 1986)).

Having considered both elements, it does not appear at this time that exceptional

circumstances are present that would require the appointment of counsel in this case.

Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will

deny without prejudice Plaintiffs Motion for Appointment of Counsel.

Motions for Injunction

Plaintiff has filed three Motions seeking preliminary injunctive relief (Docs. 10,11,

and 12). To obtain a preliminary injunction, the moving party must show “that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 21

(2008).

Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal.

2000).

The moving party has the burden of proof on each element of the test.

Here, because Plaintiff has failed to state a claim in his Complaint, he has

necessarily failed to demonstrate that he is likely to succeed on the merits of his claims,

and is thus not entitled to preliminary injunctive relief. As such, Plaintiffs Motions will

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be denied.

VII.

Warnings

If Plaintiff s address changes, Plaintiff must file and serve a notice of a change of

address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff

must not include a motion for other relief with a notice of change of address. Failure to

comply may result in dismissal of this action.

Address Changes

If Plaintiff fails to timely comply with every provision of this Order, including these

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d

at 1260-61 (a district court may dismiss an action for failure to comply with any order of

the Court).

IT IS ORDERED:

(1)

Possible Dismissal

The First Amended Complaint (Doc. 7) is dismissed for failure to state a

claim. Plaintiff has 30 days from the date this Order is filed to file a second amended

complaint in compliance with this Order.

(2)

If Plaintiff fails to file a second amended complaint within 30 days, the Clerk

of Court must, without further notice, enter a judgment of dismissal of this action with

prejudice and deny any pending unrelated motions as moot.

(3)

Plaintiffs Motion for Change of Judge (Doc. 6), Motion for Service of

Process (Doc. 8), Motion for Appointment of Counsel (Doc. 13), and Motions for

preliminary injunctive relief (Docs. 10, 11, and 12) are denied.

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(4)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.

Dated this 3rd day of May, 2019.

James A. Teilfrorg

Senior United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.