1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

RONALD BRATTON,

11 Case No. 20-03885 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 13 MOTION FOR APPOINTMENT

COUNSEL

14 WARDEN RON BROOMFIELD, et al.,

15 Defendants. (Docket No. 6) 16

17 18 Plaintiff filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 19 against prison officials and staff at San Quentin State Prison (“SQSP”) where he is 20 currently incarcerated. Dkt. No. 1. Plaintiff moves for appointment of counsel. Dkt. No. 21 6. Plaintiff’s motion for leave to proceed in forma pauperis shall be addressed in a 22 separate order. 23 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 is suing for the denial of a reasonable accommodation request for single- 11 cell status based on his serious medical needs and pre-existing conditions that place him at 12 a higher risk for COVID-19. Dkt. No. 1. He seeks injunctive relief so that he is not forced 13 to be double-celled during this “life threatening crisis period.” Id. at 3. Plaintiff makes no 14 allegation that he is not receiving proper treatment for his serious medical needs. Rather, 15 he is purely concerned for possible exposure to COVID-19 due to his pre-existing 16 conditions. Accordingly, it appears that Plaintiff is attempting to state a claim under the 17 Eighth Amendment claim for unsafe prison conditions. 18 The Constitution does not mandate comfortable prisons, but neither does it permit 19 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a 20 prisoner receives in prison and the conditions under which he is confined are subject to 21 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). 22 A prison official violates the Eighth Amendment when two requirements are met: (1) the 23 deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 U.S. at 834 24 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a 25 sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). The requisite state 26 of mind to establish an Eighth Amendment violation depends on the nature of the claim. 1 See, e.g., Farmer, 511 U.S. at 834 (inmate safety); Helling, 509 U.S. at 32-33 (inmate 2 health); Wilson, 501 U.S. at 302-03 (general conditions of confinement); Estelle v. 3 Gamble, 429 U.S. 97, 104 (1976) (inmate health). 4 Even if the Court assumes that Plaintiff satisfies the first element, he fails to 5 establish the second element, i.e., that each named defendant acted with deliberate 6 indifference to an objectively serious deprivation. He names as defendants various SQSP 7 employees: C. Young, Ron Broomfield, Dr. M. Rowe, R. Downey, M. Dahl, V. Bolden, 8 Daniel A. Smith, E. Tootell, S. R. Albritton, Dr. S. Garrigan, Dr. Sandler, A. Maxfield, and 9 Nicole Smith. Dkt. No. 1 at 2. However, nowhere in his statement of claim does he 10 describe the individual actions of any of these defendants to establish that they were 11 personally involved in the alleged deprivation, or much less that they each acted with 12 deliberate indifference. Neither negligence nor gross negligence will constitute deliberate 13 indifference. See Farmer, 511 U.S. at 835-37 & n.4; see also Estelle, 429 U.S. at 106 14 (establishing that deliberate indifference requires more than negligence). A prison official 15 cannot be held liable under the Eighth Amendment for denying an inmate humane 16 conditions of confinement unless the standard for criminal recklessness is met, i.e., the 17 official knows of and disregards an excessive risk to inmate health or safety. See Farmer, 18 511 U.S. at 837. The official must both be aware of facts from which the inference could 19 be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 20 See id. 21 In preparing an amended complaint, Plaintiff should keep the following principles 22 in mind. Liability may be imposed on an individual defendant under § 1983 only if 23 Plaintiff can show that the defendant proximately caused the deprivation of a federally 24 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 25 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 26 constitutional right within the meaning of section 1983 if he does an affirmative act, 1 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 2 F.2d at 633. Accordingly, Plaintiff must allege sufficient facts describing each named 3 defendant’s actions or failure to act that caused the violation of his Eighth Amendment 4 rights. 5 C. Motion for Appointment of Counsel 6 Plaintiff moves for appointment counsel based on his indigency, complexity of the 7 issues, need for discovery, limited access to law library and other resources, and limited 8 legal knowledge or experience. Dkt. No. 6 at 3-4. 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). Here, the 16 challenges described by Plaintiff are no different from those faced by other prisoner- 17 litigants. Accordingly, Plaintiff’s motion is DENIED without prejudice 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 This denial is without prejudice to the Court’s sua sponte appointment of counsel at a 22 future date should the circumstances of this case warrant such appointment. 23 24 CONCLUSION 25 For the reasons state above, the Court orders as follows: 26 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 1 || the court’s form complaint to correct the deficiencies described above. The amended 2 complaint must include the caption and civil case number used in this order, i.e., Case No. 3 || C 20-03885 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. 4 || Plaintiff must answer all the questions on the form in order for the action to proceed. 5 || Plaintiff is reminded that the amended complaint supersedes the original, and Plaintiff may 6 || not make references to the original complaint. Claims not included in the amended 7 || complaint are no longer claims and defendants not named in an amended complaint are no 8 || longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 9 Failure to respond in accordance with this order by filing an amended 10 || complaint in the time provided will result in the dismissal of this action without 11 || prejudice and without further notice to Plaintiff. 12 2. Plaintiff's motion for appointment of counsel is DENIED without prejudice. 5 13 Dkt. No. 6. S 14 This order terminates Docket No. 6. 15 IT IS SO ORDERED. 16 || Dated: _October 7, 2020 fs, Lape hoc) 5 BETH ABS N FREEMAN = United States District Judge

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