Opinion
CV-20-00538-PHX-DLR (ESW)
06-07-2021
Clemente Arias-Luna, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
On January 8, 2021, the Court overruled Petitioner's objections to the undersigned's Report and Recommendation (Doc. 17) and dismissed the Petition for Writ of Habeas Corpus with prejudice. (Doc. 26). Pending before the Court is Petitioner's May 6, 2021 Motion (Doc. 32) in which Petitioner requests the appointment of counsel, or in the alternative, an order requiring the Arizona Department of Corrections (“ADC”) to grant Petitioner additional access to legal resources. Petitioner also requests an additional thirty-day extension of time to file a notice of appeal or any motions, such as a motion under Federal Rule of Civil Procedure 60(b). ADC has filed a Response (Doc. 33), to which Petitioner has replied (Doc. 35). For the reasons explained below, it is recommended that the Court deny Petitioner's request for the appointment of counsel and alternative request for injunctive relief. It is recommended that the Court grant Petitioner's request for an extension of time.
ADC correctly characterizes Petitioner's alternative request for additional access to legal resources as a request for injunctive relief. (Doc. 33 at 1).
A Magistrate Judge may not rule on a motion requesting injunctive relief unless all parties have consented to the exercise of civil jurisdiction by the Magistrate Judge. 28 U.S.C. §§ 636(b)(1), (c)(1).
I. DISCUSSION
A. Petitioner's Request for the Appointment of Counsel
“Indigent state prisoners applying for habeas corpus relief are not entitled appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). “In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam) (citations omitted). “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Having considered both elements, Petitioner has not shown that the interests of justice require the appointment of counsel in this case, which was dismissed in January 2021. Petitioner has not demonstrated a likelihood of prevailing on appeal or filing a meritorious motion. Petitioner has not shown that he is experiencing difficulty in litigating this case because of the complexity of the issues involved. Petitioner's filings with the Court indicate that Petitioner is capable of articulating his claims. Petitioner is in a position no different than many pro se prisoner litigants. It is recommended that the Court deny Petitioner's request for court-appointed counsel.
B. Petitioner's Alternative Request for Injunctive Relief
A preliminary injunction may be granted only where the movant shows 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.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass'n, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). The movant “has the burden of proof on each element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000).
Generally, “[w]hen a Petitioner seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015); see De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (preliminary injunctive relief is inappropriate for matters “lying wholly outside the issues in the suit”). But an exception to this rule arises where the injunctive relief sought is related to access to the courts. See Prince v. Schriro, et al., CV 08-1299-PHX-SRB, 2009 WL 1456648, at *4 (D. Ariz. May 22, 2009) (where the relief sought relates to a prisoner's access to the court, “a nexus between the preliminary relief and the ultimate relief sought is not required[, ]” and the court need not consider the merits of the underlying complaint) (citing Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990)).
An inmate has a constitutionally protected right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 820-21 (1977). The Ninth Circuit has recognized two types of access-to-court claims: “those involving prisoners' right[s] to affirmative assistance and those involving prisoners' rights to litigate without active interference.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (emphasis in original), overruled on other grounds by Coleman v. Tollefson, 135 S.Ct. 1759 (2015). As to the first type of claim, a state is required to provide legal assistance or a law library only during the pleading stage of a habeas or civil rights action. Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). As to the second type of claim, prisoners have the right to “litigate claims challenging their sentences . . . without active interference by prison officials.” Silva, 658 F.3d at 1102-03. (citations, quotation marks, and emphasis omitted). The right to litigate without active interference extends beyond the pleading stage, and it “forbids states from erect[ing] barriers that impede the right of access of incarcerated persons.” Id. at 1102 (internal quotation omitted).
To support an active interference claim, a prisoner must allege facts showing that prison officials' actions hindered the ability to litigate and that, as a result, the prisoner suffered an actual injury. See Id. at 1102-04. An “actual injury” is defined as “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996); see Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). The failure to allege an actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“[f]ailure to show that a ‘non-frivolous legal claim had been frustrated' is fatal”) (quoting Lewis, 518 U.S. at 353, n.4). Further, in alleging denial of the right of access to the courts, specificity is required. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996).
In his Motion (Doc. 32 at 3), Petitioner states that “the paralegal cannot assist him or even offer any legal advice, much less assist in doing any research.” In his Reply, Petitioner states that the law library is open twenty hours a week and that access is restricted to one-hour time slots, which are “not easy to obtain” (Doc. 35 at 3). To the extent Petitioner is raising an access-to-courts claim based on a lack of affirmative assistance, the claim fails as this case is well beyond the pleading stage. See Cornett, 51 F.3d at 898 (“the constitutional right of access requires a state to provide a law library or legal assistance only during the pleading stage of a habeas or civil rights action”); Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999) (“The scope of the right of access to the courts is quite limited, however. Prisoners need only have ‘the minimal help necessary' to file legal claims.”) (citing Lewis, 518 U.S. at 360).
To the extent Petitioner is raising an access-to-courts claim based on active interference, Petitioner has failed to demonstrate that he has suffered or will likely suffer actual injury as a result of the library policies of which he asserts are deficient. “An inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense.” Lewis, 518 U.S. at 2180. Mere “[speculative injury does not constitute irreparable harm sufficient to warrant granting a preliminary injunction.” Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (emphasis added). It is recommended that the Court deny the injunctive relief requested in Petitioner's Motion (Doc. 32).
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court deny Petitioner's request for court-appointed counsel and alternative request for injunctive relief as set forth in his Motion (Doc. 32). It is recommended that the Court grant Petitioner's request in his Motion (Doc. 32) for a thirty-day extension of the time to file a notice of appeal or any motions.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).