DALE A. DROZD

ORDER

Plaintiff is a state prisoner proceeding pro se with an action for alleged violations of his civil rights, pursuant to 42 U.S.C. § 1983. He has filed a motion for reconsideration of this court's order of December 11, 2013, wherein the court partially granted his request for additional time in which to file an opposition to defendant's motion for summary judgment and denied his request for appointment of counsel. (See Doc. 63.) The parties have consented to magistrate judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c).

Plaintiff is currently incarcerated at Salinas Valley State Prison. In his complaint plaintiff alleges that while incarcerated at the California Medical Facility (CMF) in May 2009, defendant Dizon, a correctional officer there, retaliated against plaintiff for his threat to file an inmate grievance and due to plaintiff's complaints about officer Dizon to other correctional officers.

Motion for additional time

In his motion to reconsider, plaintiff contends he still needs additional time to solicit affidavits from four witnesses who have remained incarcerated at CMF. (Motion (Doc. 65) at 2-4.) Plaintiff alleges that the warden at CMF has failed to grant him permission to correspond with these inmate witnesses. He argues this obstruction "interfer[es] with Plaintiff's investigation and [is an] impediment to Plaintiff presenting his claim". (Id. at 6.) Plaintiff also renews his request that this court to issue subpoenas duces tecum and an order requiring the warden at CMF to allow him to communicate in writing with the inmate witnesses there.

First, the request for a subpoena duces tecum that plaintiff attached to his motion for additional time (Doc. 49, Ex. C at 27-29) propounded discovery requests that the court had already denied in ruling on plaintiff's motion to compel (see Doc. No. 41) or were submitted well after the discovery deadline of March 15, 2013 previously established in this civil action by court order. Second, to the extent plaintiff seeks a subpoena in order to obtain sworn declarations from other inmates, "a subpoena duces tecum cannot be used to order the production of an affidavit." Johnson v. Dovey, No. 1:08-cv-0640 LJO DLB PC, 2010 WL 1957278 at *1 (E.D. Cal. May 14, 2010). Under Federal Rule of Civil Procedure 45, a subpoena must "command each person to whom it is directed to do [one of] the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises[.]" An unexecuted and likely undrafted declaration of a non-party is not an existing document in anybody's possession, custody or control. Therefore, a request to subpoena a non-party to produce an affidavit, such as plaintiff is requesting here, is beyond the scope of Rule 45. See Johnson, 2010 WL 1957278 at *1.

As for plaintiff's request for an order requiring the warden at CMF to open the channels of correspondence between plaintiff and the alleged inmate witnesses from whom he seeks affidavits, the court will construe that request as one seeking a preliminary injunction. A preliminary injunction should not issue unless necessary to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. "A preliminary injunction . . . is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).

"The proper legal standard for preliminary injunctive relief requires a party to demonstrate '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.'" Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal quotations omitted)). "Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction." Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988), citing Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Rather, a presently existing actual threat must be shown, although the injury need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean Marine, supra, 844 F.2d at 674.

A plaintiff cannot, as a general matter, obtain injunctive relief against non-parties. "Unrelated claims against different defendants belong in different suits[.]" George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). However, a federal court does have the power to issue orders in aid of its own jurisdiction, 28 U.S.C. § 1651(a), and to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). Here, plaintiff alleges that the warden at CMF is interfering with his efforts to gather affidavits that would support his retaliation claim in this civil rights action. He asserts that at least two inmates at CMF witnessed conduct that plaintiff construes as defendant Dizon's "harassment" of him in retaliation for his complaints to other officers. (Doc. 49 at 5.) Insofar as such testimony could be material to the defendant's pending motion for summary judgment, the allegation that the warden at CMF is obstructing plaintiff's access to those alleged inmate witnesses could, if proven, justify an order in furtherance of the court's ability to adjudicate this case.

Prisoners have a constitutional right to send and receive mail, but it is limited by the state's interest in maintaining safety and security in its prisons. Turner v. Safley, 482 U.S. 78, 89 (1987). Thus inmates in California's prison system may correspond with other inmates "provided those persons meet the criteria of approval of no known gang affiliation, or involvement with a known terrorist group or racketeering enterprise." Cal. Admin. Code tit. 15, § 3139(b). The same regulation gives a warden authority to restrict an inmate in another facility from communicating with inmates in his custody. "[A]pproval to correspond may be revoked due to disciplinary violations involving correspondence between the inmates/parolees or as a result of classification action based on safety and security." 15 CCR § 3139(d). "If the request to correspond is denied at the . . . state correctional facility, the reason for denial shall be annotated on the CDC Form 1074," and "staff at the sending institution/field office shall ensure that the 2^nd page [of the form] is returned to the initiating inmate." 15 CCR § 3139(c)(4), (6). "If an inmate's request to correspond with another inmate/parolee is denied, the CCI [Correctional Counselor I] shall advise the inmate in writing." 15 CCR § 3139(c).

In his motion for additional time in which to oppose defendant's motion for summary judgment, plaintiff states that he requested permission for correspondence through his CCI as early as February of 2013, but that the warden at CMF "failed to grant his approval, making the process incomplete." (Doc. 49 at 3-4.) It is not entirely clear from plaintiff's filings with this court whether the warden (or other officer with authority) at CMF has denied plaintiff access to correspond with inmates there or whether the warden has simply failed to respond to plaintiff's attempt to gain that access. Title 15 CCR § 3139 makes clear that the safety and security of the state's correctional facilities could be implicated here, thus giving rise to the possible inference that the security of the prison may have been part of the decision to decline to disallow plaintiff from corresponding with the inmates he wants to sign affidavits for use in this case. However, if there has been an official denial of access, state law requires plaintiff to have received a document reflecting that decision, if not the reason for it. 15 CCR § 3139(c)(4), (6). The court observes that plaintiff has been tenacious and thorough in prosecuting this action thus far. Accordingly, the absence of such a document may indicate that no official at CMF has decided whether to allow the correspondence - and thus that no security interest bars plaintiff from contacting inmates at CMF in order to obtain affidavits which he believes would support his claim and defeat summary judgment in favor of defendant. Though prison officials enjoy broad discretion in executing their duties, state officials must 'assure indigent defendants an adequate opportunity to present his claims fairly.'" Bounds v. Smith, 430 U.S. 817, 823 (1977) (citation omitted). Blocking a prisoner access to a potentially material witness for no legitimate penological purpose, even inadvertently, unreasonably encroaches on his right of access to the court and the opportunity to present his claims fairly.

However, it is plaintiff who has the burden of proving that the balance of equities tips in favor of an injunction ordering the warden at CMF to allow him to correspond with certain alleged inmate witnesses incarcerated there. The court does not have enough information before it with which to rule on which way the balance tips - yet. Therefore the court will order the defendant to respond to the motion to reconsider on the issue of whether this court should order officials at CMF to allow plaintiff to correspond with the inmates he has named as potential witnesses to material facts alleged in his complaint. Defendant shall provide any and all documentation and information at his or his counsel's disposal, including records in the custody or control of the California Department of Corrections and Rehabilitation (CDCR), reflecting the response, if any, of the warden or other official at CMF to plaintiff's request for permission to contact certain alleged inmate witnesses concerning this case. If defendant's counsel deems it necessary to submit documents under seal for in camera review, she may do so. Defendant shall also submit a written response to plaintiff's request for an order requiring the warden to allow such correspondence.

Motion for appointment of counsel

Plaintiff renews his request for appointment of counsel, citing his mental disability. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.

As noted above, plaintiff has prosecuted this action zealously thus far, apparently with the aid of other inmates. See Montano v. Solomon, No. 2:07-cv-0800 KJN P, 2010 WL 4137476 at *7 (E.D. Cal. Oct. 19, 2010) (denying a motion for appointment of counsel because "plaintiff has adequately presented, albeit through another inmate, the salient factual allegations of this case"). An incapacitating mental disability may be grounds for appointment of counsel in some cases, but a plaintiff making that argument must present substantial evidence of incompetence. See McElroy v. Cox, Civil No. 08-1221 JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). Here, plaintiff merely alleges he has a mental disability in seeking the appointment of counsel; the court has no evidence detailing its nature or effects, which, again, plaintiff has thus far surmounted with the help of other inmates. Furthermore, as the assigned Magistrate Judge in the Montano case put it, "[t]his is a relatively straightforward Eighth Amendment case," so there are no complex legal issues sufficient to reverse the court's determination that appointment of counsel is unnecessary at this stage of the case. Montano, 2010 WL 4137476 at *7.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to reconsider (Doc. No. 65) is denied in part. The renewed requests for a subpoena duces tecum and for appointment of counsel are denied.

2. Within fourteen days of the date of this order, defendant shall respond to plaintiff's motion to reconsider only with respect to the issue of whether the court should order officials at California Medical Facility to allow plaintiff to correspond with the inmates he has named as potential witnesses to material facts alleged in his complaint. Defendant shall provide any and all documentation and information at his or his counsel's disposal, including records in the custody or control of the California Department of Corrections and Rehabilitation, reflecting the response, if any, of the warden at CMF to plaintiff's request for permission to contact certain inmates concerning this case.

3. The briefing schedule given in the court's order of December 11, 2013, is vacated. The court will issue a new schedule for briefing on the defendant's pending motion for summary judgment upon resolution of the portion of plaintiff's motion to reconsider that the court has construed as a request for preliminary injunction, herein.

__________

DALE A. DROZD

UNITED STATES MAGISTRATE JUDGE
hm
west1293.ord(3)