1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD ZAKOSKY, Case No.: 17cv1373-JAH (BGS) 12 Plaintiff,

ORDER DISMISSING PLAINTIFF’S

13 v. SECOND AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) 14 DEPARTMENT OF VETERANS

AND DENYING MOTION TO

AFFAIRS,

15 APPOINT COUNSEL (Doc. No. 7) Defendant. 16 17 INTRODUCTION 18 On July 6, 2017, Plaintiff Richard Zakosky (“Plaintiff”) filed a complaint with the 19 Court along with a motion to proceed in forma pauperis and a motion to appoint counsel. 20 Doc. Nos. 1, 2, 3. On October 24, 2017, the Court granted Plaintiff’s motion to proceed in 21 forma pauperis, denied his motion to appoint counsel, and on sua sponte screening, 22 dismissed the complaint without prejudice. See Doc. No. 4. Plaintiff filed his First 23 Amended Complaint (“FAC”) on November 17, 2017. See Doc. No. 7. On August 17, 24 2018, Plaintiff’s FAC was dismissed without prejudice for failure to state a claim. See Doc. 25 No. 10. Presently before the Court is Plaintiff’s Second Amended Complaint (“SAC”) and 26 Motion to Appoint Counsel, (doc. no. 11), which pursuant to 28 U.S.C. § 1915(a) is subject 27 to mandatory sua sponte review. 28 // 1 BACKGROUND 2 Plaintiff’s SAC alleges that during his employment as a telemetry technician for the 3 Veterans Affairs Hospital (the “VA”) in San Diego, California, he identified that the 4 “parameter setting [on the telemetry instruments were] too high or too low which created 5 adverse events in telemetry central.” Doc. No. 11 at 2. Plaintiff reported this to the nurse 6 manager and was told, “fro[m] now on, all the telemetry techs will handle [their] issues on 7 [their] own,” which worsened Plaintiff’s depression. Id. On or about September 30, 2013, 8 Plaintiff “went to [the] Office of Inspector General and filed a complaint to [the] special 9 agent in charge of VA San Diego.” Id. Plaintiff alleges when no one from the Office of 10 Inspector General showed up after twelve days, he had a mental breakdown. Id. Plaintiff 11 was then “relieved of his duties and transferred to the emergency department.” Id at 3. 12 Thereafter, his mental health worsened and his “mental appointments were getting 13 cancelled.” Id. 14 Finally, Plaintiff claims his second amendment rights were stripped from him by 15 Judge Steven Stone in San Diego Superior Court on May 15, 2015. Id. The remainder of 16 the complaint lists the names of ten individuals alongside descriptions of their actions that 17 negatively impacted Plaintiff. Id. 18 DISCUSSION 19 I. Screening Pursuant to 28 U.S.C. § 1915(a) 20 i. Legal Standard 21 Any complaint filed by a person filing in forma pauperis pursuant to 28 U.S.C. § 22 1915(a) is subject to mandatory and sua sponte review and dismissal by the court to the 23 extent it is “frivolous, malicious, failing to state a claim upon which relief may be granted, 24 or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. 25 §1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 26 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 27 1126-27 (9th Cir. 2000) (en banc). “The standard for determining whether a plaintiff has 28 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 1 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 2 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 3 To survive sua sponte review, Plaintiff’s SAC must contain “a short and plain 4 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 6 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 8 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a 9 context-specific task that requires the reviewing court to draw on its judicial experience 10 and common sense.” Id. The “mere possibility of misconduct” falls short of meeting this 11 plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 12 2009). 13 If the Court determines that the complaint fails to state a cognizable claim, the Court 14 may grant leave to amend to the extent that deficiencies of the complaint can be cured by 15 an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000). However, while 16 the court “has an obligation where the petitioner is pro se, particularly in civil rights cases, 17 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” 18 Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 19 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were 20 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 21 (9th Cir. 1982). 22 ii. Analysis 23 In dismissing Plaintiff’s initial complaint and FAC, the Court found that Plaintiff 24 had not presented actionable claims “beyond stating that there was wrongdoing at the 25 Department of Veterans Affairs.” See Doc. Nos. 4 at 3, 10 at 2. 26 As currently plead, Plaintiff’s SAC fails to state a claim upon which relief can be 27 granted. Plaintiff once again makes threadbare allegations of some wrongdoing at the 28 Department of Veteran Affairs, which resulted in his depression worsening. Even after 1 construing Plaintiff’s complaint liberally, as this Court must do given his pro se status, 2 Plaintiff has not presented a sufficient basis for a cognizable claim on which relief may be 3 granted. See Estelle v. Gamble, 429 U.S. 97 (1976). Accordingly, the Court DISMISSES 4 the amended complaint without prejudice for failure to state a claim. 28 U.S.C. § 5 1915(e)(2). 6 II. Request for Appointment of Counsel 7 i. Legal Standard 8 There is no constitutional right to be represented by counsel in a civil action. Hedges 9 v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); see Hernandez v. Whiting, 10 881 F.2d 768, 770-71 (9th Cir. 1989). Under 28 U.S.C. § 1915 (e) (1), however, district 11 courts may appoint counsel for indigent litigants under “exceptional circumstances.” See 12 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn v. Escalderon, 13 789 F.2d 1328, 1331 (9th Cir. 1986)). Determining whether “exceptional circumstances” 14 exist requires a court to evaluate (1) the likelihood of success on the merits, and (2) the 15 ability of the petitioner to articulate his claims pro se in light of the complexity of the 16 issues. Id. “Neither of these issues is dispositive and both must be viewed together before 17 reaching a decision.” Id. 18 ii. Analysis 19 Plaintiff’s motion states that Plaintiff “want[s] the court to subpoena the defendants, 20 so they can explain their side of the story, plus settle for 25 million dollars for causing 21 [permanent] depression that won’t go away, even with medication.” Doc. No. 11 at 6. 22 Despite Plaintiff’s indigence and corresponding inability to pay for counsel, Plaintiff fails 23 to state grounds that would allow the Court to determine whether exceptional 24 circumstances exist. 25 CONCLUSION AND ORDER 26 Based on the foregoing, IT IS HEREBY ORDERED: 27 1. Plaintiff’s amended complaint (doc. no. 7) is DISMISSED without prejudice for 28 failure to state a claim. Plaintiff is permitted leave to file an amended complaint 1 within thirty (30) days from the date of this Order in order to cure the noted 2 deficiencies in the complaint. 3 Plaintiff will be given one final opportunity to file a Third Amended Complaint 4 curing the deficiencies identified in this order. See Noll v. Carlson, 809, F.2d 5 1446, 1448-49 (9th Cir. 1987) (“A pro se litigant must be given leave to amend 6 his or her complaint unless it is absolutely clear that the deficiencies of the 7 complaint could not be cured by amendment.”). In the alternative, Plaintiff may 8 notify the Court in writing that he does not wish to file a Third Amended 9 Complaint. 10 Plaintiff is advised that the Court cannot refer to a prior pleading in order to make 11 an amended complaint complete. As a general rule, an amended complaint 12 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9" Cir. 13 1967). Thus, once the Third Amended Complaint is filed, the other pleadings no 14 longer serve any function in the case. In addition, Plaintiff is warned that “[a]I] 15 causes of action alleged in an original complaint which are not alleged in an 16 amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 17 1986). 18 2. Plaintiff's request for appointment of counsel is DENIED without prejudice. 19 Doc. No. 11. 20 IT ISSO ORDERED. 21 22 || DATED: December 20, 2019 23

JOHN A. HOUSTON

Ign States District Judge 25 26 27 28