United States District Court, D. Arizona
EILEEN S. WILLETT, Magistrate Judge.
Plaintiff is a prisoner confined in the Arizona State Prison Complex-Eyman in Florence, Arizona. He filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 on June 13, 2014 (Doc. 1). Pursuant to 28 U.S.C. § 1915(A), the Court screened Plaintiff's Complaint (Doc. 1) to determine its legal sufficiency. In its November 25, 2014 Order (Doc. 14), the Court required Defendant Schroeder to answer the Complaint (Doc. 1). On February 20, 2015, Plaintiff filed a "Complaint for Negligence" (Doc. 21). The Court deems the "Complaint for Negligence" (Doc. 21) to be an amended complaint, hereinafter referred to as the "First Amended Complaint."
Pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may amend his complaint once as a matter of course within: "(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier." Proof of service has not been filed in this matter. Nor has a motion under Rule 12(b), (e), or (f) of the Federal Rules of Civil Procedure been filed. Under Rule 15(a)(1), Plaintiff is therefore entitled to amend his Complaint (Doc. 1) as a matter of right.
The Court, however, must screen civil complaints brought by prisoners who seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915(a). The Court must dismiss a complaint or portion thereof that is legally frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from suit. 28 U.S.C. § 1915(A)(b)(1), (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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[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)). To present a plausible claim, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the 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 plaintiff's 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. However, 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)); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (instructing courts to construe pro se filings liberally).
Finally, a first amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262 ("after amendment the original pleading no longer performs any function and is treated thereafter as non-existent") (internal quotation marks and citation omitted). Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a proposed amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
I. Statutory Screening of the First Amended Complaint
Plaintiff alleges one count in his First Amended Complaint (Doc. 21). That count asserts that Plaintiff's Eighth Amendment rights were violated when Defendant Correctional Officer J.D. Schroeder allegedly used excessive physical force against Plaintiff. This claim is contained in Plaintiff's original Complaint (Doc. 1), and the First Amended Complaint (Doc. 21) reiterates the supporting factual allegations made in the original Complaint.
To support his claim, Plaintiff alleges that while Plaintiff was in his cell doing legal work and getting ready to go out for recreation, Defendant Schroeder came to Plaintiff's cell door and asked Plaintiff if he wanted to "talk that shit' [Plaintiff] was talking in the Mental Health Watch Pod." (Doc. 21 at 2). Plaintiff then alleges that Defendant Schroeder entered Plaintiff's cell and pushed Plaintiff onto Plaintiff's bed, then hit Plaintiff several times in the face, upper body, and upper legs and arms. Defendant Schroeder also allegedly dumped the contents of Plaintiff's legal and property boxes on the floor and stepped on the boxes and then kicked and hit Plaintiff until he lost consciousness. Plaintiff further alleges that he "did not do or say anything to cause [Defendant] Schroeder to beat and kick him." (Doc. 21 at 2).
The Court finds that Plaintiff sufficiently alleges facts in the First Amended Complaint (Doc. 21) to support Plaintiff's claim that Defendant Schroeder used excessive force against Plaintiff. The Court therefore orders Defendant Schroeder to answer Plaintiff's excessive force claim contained in the First Amended Complaint (Doc. 21).
II. Motion for Appointment of Counsel (Doc. 24)
Also pending before the Court is Plaintiff's Motion for Appointment of Counsel (Doc. 24). There is no constitutional right to the appointment of counsel in a civil case. See Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). If "exceptional circumstances" exist, however, a court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). A court must consider two factors when determining whether "exceptional circumstances" exist: (i) the likelihood the plaintiff will succeed on the merits of his or her claims and (ii) the plaintiff's ability to articulate his or her "claims pro se in light of the complexity of the legal issues involved." Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). These two factors must be considered together, and neither factor is dispositive. Palmer, 560 F3.d at 970 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
In his Motion for Appointment of Counsel (Doc. 24), Plaintiff states that his "imprisonment will greatly limit his ability to litigate." Plaintiff also states that he has a medical disorder that impacts his ability to litigate. But Petitioner has not shown a likelihood that his claim will succeed on the merits. Petitioner also has not shown a difficulty in articulating his claim in light of the complexity of the legal issues involved. Petitioner's pleadings indicate that Petitioner is able to conduct legal research and articulate his legal arguments to the Court. See Wilborn, 789 F.2d at 1331 ("If all that was required to establish successfully the complexity of the relevant issues was a demonstration of the need for development of further facts, ...