Long time no speak Facebook friends!! I have no doubt been very busy with this trying situation, I however, have received many well wishes and request for updates. Below is the order from Central District Court, Western Division, California. Initially, when I filed the suit we were on a positive note. But yet again this agency and government operates above the law and on January 21, 2014 the court delivered a minor setback. Out of all the Pro Liberal, Civil Rights organizations I reached out to, only one answered that call of duty. Fellow veterans, family, friends and supporters we owe a great “thank you” to C4C, Coalition for Change. This organization is comprised of current and former federal employees, current and former VA employees and veterans. They have provided a world of support to me, my cause and our mission for better access to healthcare and disability determinations for all veterans. When you get a chance please stop by their site and drop a thank you note for their support in our actions. You may visit C4C at https://facebook/pages/The-Coalition-For-Change-Inc-C4C/115920498448217. Most recently, C4C produced and published a highly informational video, outlining the problems of the VA and the issues we face as veterans. I employ you to take a look at it and continue our cause. You may view the video titled “Veterans Affairs Dishonoring Americas Veterans and Civil Servants” at youtube/watch?v=ua6un2diBck&feature=youtu.be. Additionally, stop by scoop.it/t/veterans-affairs-abuse. FOR IMMEDIATE RELEASE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OLIVER B. MITCHELL III, Case No. 2: 1 3-cv-6030-ODW (CWx) Plaintiff, ORDER GRANTING REOUEST v. FOR APPOINTMENT OF COUNSEL UNITED STATES DEPARTMENT OF VETERANS AFFAIRS et al., Defendants Plaintiff Oliver B. Mitchell III has requested appointment of counsel in this matter. (ECF No. 5.) The Court construes this request as one under 28 U.S.C. 1915(e) (1). But appointment of counsel under 28 U.S.C. 1915(e) (1) is limited to cases presenting exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). To decide whether these exceptional circumstances exist. A court must evaluate both the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Id. Mitchells Complaint sets forth various causes of action and seeks redress for a myriad of wrongs, including discrimination and retaliation by Defendants against him as an employee, patient, and whistleblower. Mitchell also seems to pursue claims on behalf of other veterans that have been harmed by the Defendants. Based on these allegations, the Court finds that Mitchell has some likelihood of success on the merits. But this likelihood is hampered by his inability to clearly articulate his claims, as exemplified by his Complaint. Although the legal issues in this case are not particularly complex, the Court finds that he would be better served with the assistance of counsel. See Rand v. Rowland, 113 F.3d 1 520, 1525 (9th Cir. L997.) Even so, the Court is concerned about the unnecessary expenditure of taxpayers dollars, especially in a time of financial crisis. Thus, the Court will closely monitor the propriety, of this case and will either dismiss the case or remove the appointed attorney if the Court finds that the allegation of poverty is untrue, the action is frivolous or malicious, or the pleadings ultimately fail to state a claim on which relief may be granted. 28 U.S.C. 1915(e) (2). Accordingly, Mitchell’s Request for Appointment of Counsel is GRANTED. IT IS SO ORDERED. October 7, 2013 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE Then on October 11, 2013 it began to fall apart: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OLIVER B. MITCHELL III, Case No. 2: 1 3-cv-6030-ODW (CWx) Plaintiff, ORDER VACATING APPOINTMENT v. OF COUNSEL UNITED STATES DEPARTMENT OF VETERANS AFFAIRS et al., Defendants Upon reconsideration, this case appears to be a 194 case and will be transferred to the magistrate judge. Therefore, the Court VACATES the Order Granting Request for Appointment of Counsel (ECF No. 10) and DENIES WITHOUT PREJUDICE Plaintiff Oliver B. Mitchells Request for Appointment of Counsel. (ECF No. 5.) IT IS SO ORDERED. October 7, 2013 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE And yet again another setback: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No.: CV l3-6030-ODW(CW) Date December 17 ,2013 Title: Oliver B Mitchell, III v. United States Department of Veterans Affairs, et al. Present: The Honorable Carla Woehrle, United States Magistrate Judge Donna Y. Thomas, Deputy Clerk Attorneys Present for Plaintiffs: n/a Court Reporter / Recorder Tape No. n/a Attorneys Present for Defendants : n/a Proceedings: (ln Chambers) Plaintiffs request for reconsideration for appointment of counsel (docket no. 13, filed December 10, 2013) is DENIED WITHOUT PREJUDICE at this time. There is no constitutional right to appointed counsel in civil rights cases. Rand v. Rowland, 113 F.3d 7520, 7525 (9th Cir. 7991). The court has no way to pay appointed counsel, and the court cannot compel an attorney to represent the plaintiff. Mallard v. U.S. Dist. Court, 490 U.S. 296, 298, 301-310, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989). In exceptional circumstances, the court may request counsel to voluntarily provide representation. Id.; 28 U.S.C. S 1915 (e) (1). To decide whether exceptional circumstances exist, the court evaluates both the likelihood of a plaintiffs success on the merits and the plaintiffs ability to articulate claims pro se. Rand, 113 F.3d at L525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). At this time, the court does not find such exceptional circumstances in this case. The court assures the plaintiff that it will liberally construe the pleadings and give the plaintiff the benefit of the doubt. See Karim-Panahi v. Los Anqeles Police Dept, 839 F.2d 621, 623 (9th Cir. 19BB). If the court finds at a later time that appointment of counsel is proper in this case the court may reopen the matter on its own motion. Plaintiffs request for service by marshal (docket no. 74, filed December 10, 2013) is DENIED WITHOUT PREJUDICE as premature. Because Plaintiff is seeking to proceed in forma pauperis his complaint is subject to screening under 28 U.S.C. 1915(e) (2). If and when the court determines that the complaint passes screening, the court will issue orders regarding marshals service on its own motion. And yet again… UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OLIVER B. MITCHELL III, Case No. CV 13-6030 ODW (CW) Plaintiff, MEMORANDUM AND ORDER v. DISMISSING COMPLAINT WITH UNITED STATES DEPARTMENT OF LEAVE TO AMEND VETERANS AFFAIRS et al., Defendants Plaintiff Oliver B. Mitchell, III opened this action with a request to proceed without prepayment of the filing fee dated and filed August 16, 2013. Leave to file was granted and Plaintiff’s Complaint was filed September 26, 2013. Plaintiff is appearing pro se and seeking to proceed in forma pauperis, on a civil rights complaint under 42 U.S.C. 1983. For reasons stated below, the complaint is dismissed with leave to amend. STANDARD OF REVIEW Complaints such as Plaintiffs are subject to the courts sua sponte review under provisions of the Prison Litigation Reform Act of 1995 (PLRA). The court shall dismiss such a complaint, at any time, if the court finds that (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. A claim is frivolous when it is without basis in law or fact, and malicious when it is filed with the intention or desire to harm another. Failure to state a claim has the same meaning on PLRA review that it has in review of a motion to dismiss. A Rule 12(b) (5) motion to dismiss for failure to state a claim “tests the legal sufficiency of a claim.” Dismissal for failure to state a claim may be based on “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” A complaint may also be dismissed for failure to state a claim if it discloses a fact or complete defense that will necessarily defeat the claim. To survive review for failure to state a claim, a complaint must allege facts sufficient to state a facially plausible claim to relief. The Ninth Circuit has summarized the standard as follows: A complaint is properly dismissed under Rule 12(b) (6) unless it contains enough facts to state a claim to relief that is plausible on its face. Well-pleaded factual allegations are taken as true, but conclusory statements or bare assertions are discounted. If a complaint fails this review, a court may dismiss it with or without leave to amend. Leave to amend should be granted if it appears that defects can be corrected, especially if a plaintiff is appearing pro se. If after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. PLAINTIFF S ALLEGATIONS AND CLAIMS Plaintiff names as defendants the United States Department of Veterans Affairs (VA), Eric K. Shinseki (VA Secretary), Donna Beiter (Director, VA Medical Center, West Los Angeles), and Lisa K. Holliday (General Counsel, VA Medical Center, West Los Angeles). Defendants Beiter and Holliday are explicitly named in both official and individual capacities. Plaintiff makes lengthy but vague allegations that the VA and VA employees have harassed him in numerous ways, violating his federal civil rights under 42 U.S.C. S 1983 and other statutes. He seeks monetary damages. DEFECTS IN PLAINTIFFS COMPLAINT To state a federal civil rights claim under 42 U.S.C. S 1983, a plaintiff must plead: (1) that a defendant acted under color of state law and (2) that the defendant caused the plaintiff to be deprived of a right secured by the federal constitution or laws. The plaintiff must set forth factual allegations with sufficient particularly to give a defendant fair notice of the type of claim being pursued. Here, Plaintiffs 1983 claims are asserted against a federal agency and three of its employees. However, a federal agency and federal employees acting under color of federal law are not persons acting under color of state law who may be sued under 42 U. S. C. 1983. See Billings v. United States, 5/ tr.3d/97, 801 (9th Cir.1995) (1983 provides no cause of action against federal agents acting under color of federal law.) Accordingly, all of Plaintiffs 1983 claims are subject to dismissal on PLRA screening. Plaintiff also attempts to assert claims under 42 U.S.C. 1981, 1982, 1985, 1986, and 1988. Sections 1981 and 1982 apply to intentional racial discrimination in regard to contract (S 1981) or property (S l982) rights, and do not require action under color of law. A plaintiff may bring a claim for damages against a federal agent, acting under color of federal law, for violating federal constitutional rights, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 4A3 U.S. 3BB, 9l S. Ct. 7999, 29 L. Ed. ?,d 6\9 (1971). However, a Bivens action cannot be brought against a federal agency or a federal agent named in an official capacity. FDIC v. Meyer, 510 U.S. 417, 486, 774 S. Ct. 996, 121 L. Ed. 2d 308 (1994) (no Bivens claim against federal agency); Conseio de Desarrollo Economico de Mexicali v. United States , 482 F.3d 1157 , 777 3 (9th Cir.2001 ) (no Bivens action against federal agent in an official capacity). Therefore, Plaintiffs complaint cannot be amended to state a Bivens claim against the VA or any VA employee in an official capacity. A Bivens claim may be stated for a constitutional violation under color of federal law by a federal agent named in an individual capacity. Consejo, 482 F.3d at 1173. An individual capacity claim is based on what the individual defendant allegedly did or failed to do, while an official capacity claim is based solely on a defendants official positron. Here, Plaintiff has not alleged any individual actions by Defendants Shinseki or Beiter. Accordingly, Plaintiffs complaint cannot be amended to state a Bivens claim against Shinseki or Beiter. Plaintiff has made allegations about individual acts by Defendant Holliday, but his factual allegations, as they stand, do not show that Defendant Holliday violated any of his constitutional rights. On the other hand, Plaintiff might be able successfully to amend his complaint, consistently with his factual allegations, to state a Bivens claim against Defendant Holliday. In light of the liberal policy toward amendment of pro se pleadings, Plaintiff will be given leave to amend his complaint to state a Bivens claim, for violation of a federal constitutional right, against Defendant Holliday in an individual capacity only. ORDERS: It is therefore ORDERED as follows: 1. The Complaint is dismissed with leave to amend. 2. Within thirty (30) days of the filing of this Memorandum and Order, Plaintiff may file a First Amended Complaint which corrects the defects discussed above and complies with these requirements: (a) “The First Amended Complaint must bear the present case number CV 13-6030-ODW (CW). (b) It must be complete in itself and may not incorporate by reference any part of any prior complaint. (c) Plaintiff may not use et al in the caption, but must clearly name each defendant against whom a claim is stated in the First Amended Complaint. (The clerk uses the caption to make sure that defendants are correctly listed on the docket.) (d) Plaintiff may not add new parties without the courts permission. 3. If Plaintiff files an amended complaint, the court will issue further orders as appropriate; if not, the magistrate judge will recommend that this action be dismissed, without prejudice, for failure to prosecute or to comply with court orders, as well as for the reasons stated above. 4. The clerk shall serve this Memorandum and Order on Plaintiff. DATE: January 27, 2014 CARLA M. WOEHRLE United States Magistrate Judge So in other words, good luck suing the VA, now get lost!! Its not over yet…
Posted on: Sat, 01 Feb 2014 07:15:54 +0000
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