Opinion
2:20-cv-02327 DB P
09-09-2021
ANDRE RAMON CRAVER, Plaintiff, v. C. FLOYD, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Presently before the court is plaintiff's motion to appoint counsel (ECF No. 11) and his motion for judicial intervention (ECF No. 12). For the reasons set forth below, the motion to appoint counsel will be denied and it will be recommended that the motion for judicial intervention be denied.
MOTION TO APPOINT COUNSEL
In a motion filed July 29, 2021, plaintiff requests that the court appoint him counsel to assist with the present case. (ECF No. 11.) Plaintiff makes this request because he is undergoing the process of receiving a stem cell transplant. (Id. at 2.) This transplant is a treatment for plaintiff's diagnosed “Multiple Myeloma Cancer.” (Id.) Plaintiff states in a declaration attached to his motion that, on June 9, 2021, he was transferred to begin treatment. (Id. at 8.) The treatment is scheduled to last one month and then he will have a minimum of three months of recovery time. (Id.) Plaintiff could also face a longer hospitalization period if complications arise. (Id.) During the period of his treatment and recovery, plaintiff says he will not have access to the prison law library or his personal property. (Id.)
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.
In the present case, the court does not find such exceptional circumstances exist. Based on what is stated in his motion, plaintiff may be unable to properly prosecute his case for a period while he received treatment. However, the situation described by the plaintiff is one of limited duration. There is nothing in plaintiff's motion to suggest that he will be unable to proceed pro se after this delay. Thus, an extension of time or a stay of the current action is more appropriately suited to plaintiff's situation. Additionally, plaintiff does not appear unable to articulate his claims nor do the legal issues seem highly complex. Accordingly, plaintiff's motion for appointment of counsel (ECF No. 11) will be denied.
The court recently stayed this action for purposes of participation in the Post-Screening Alternative Dispute Resolution Project. (ECF No. 14.) Plaintiff may request an extension of this stay or an extension of time if plaintiff feels he is still unable to prosecute his case adequately due to his treatment or any complications it might cause.
MOTION FOR JUDICIAL INTERVENTION
Plaintiff seeks preliminary injunctive relief from the court in the form of an order directing “the Warden of R.J. Donavan [sic]” to return the plaintiff's “personal property.” (ECF No. 12 at 3.) Plaintiff states that he was transferred to R.J. Donovan Correctional Facility (RJD) on July 31, 2021. (Id. at 2.) After being transferred, plaintiff was told by “Officer Wright” that he would not receive his property for thirty days. (Id.) Plaintiff was scheduled to be admitted to the hospital on August 10, 2021. (Id. at 3.)
A. Legal Standards
A party requesting preliminary injunctive relief must show 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, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the plaintiff demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the public interest, a preliminary injunction may issue so long as serious questions going to the merits of the case are raised and the balance of hardships tips sharply in plaintiff's favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious questions” version of the sliding scale test for preliminary injunctions remains viable after Winter).
The principle purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claims raised in the injunction when the action is brought to trial.
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). It is typically only appropriate to grant preliminary injunctive relief where the relief sought is “of the same character as that which may be granted finally” in the lawsuit. De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945).
Preliminary injunctive relief against individuals not parties to an action is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in which he is not designated as a party . . . .”). In certain exceptional situations, the court may consider injunctive relief in order to permit the case to proceed. The All Writs Act, 28 U.S.C. § 1651(a) permits the court to issue writs “necessary or appropriate in aid of their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances against persons or entities not a party to the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977).
B. Analysis
Plaintiff has not shown that he is likely to suffer irreparable harm in the absence of the court granting preliminary injunctive relief. Plaintiff's main concern appears to be that he may face a delay in access to his personal property due to his transfer. (ECF No. 12 at 3.) However, plaintiff has not alleged how this could cause him harm, let alone harm that is likely and irreparable. Winter, 555 U.S. at 20.
The relief requested by the plaintiff is also not related to his underlying claim in this action. The complaint states Eighth Amendment claims of deliberate indifference to medical needs and inadequate food. (ECF No. 1; see ECF No. 5.) The preliminary injunctive relief request appears to only concern plaintiff's access to his property and the relief plaintiff seeks is the return of that property. (ECF No. 12.) The claims raised in plaintiff's complaint do not appear to have any clear connection to the relief plaintiff seeks in his present motion. As the injunctive relief sought by the plaintiff is not based on claims asserted in the complaint, the court does not have authority to grant the requested injunctive relief. Pacific Radiation Oncology, LLC v. Queen's Medical Center, 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have authority to issue an injunction.”).
Moreover, the use of an injunction against a non-party, such as the Warden of RJD, is heavily disfavored. Zenith Radio Corp., 395 U.S. at 110. The All Writs Act permits the court to use injunctive relief against persons who are not parties to the action when it is necessary for the court to exercise or preserve its jurisdiction. Plum Creek Lumber Co., 608 F.2d at 1289. However, plaintiff does not request that preliminary relief against a non-party in order for the court to be able to exercise or preserve its jurisdiction. Thus, the use of an injunction against the Warden of RJD is heavily disfavored and would also not be in keeping with the purposes of the All Writs Act.
Given the above, it will be recommended that plaintiff's motion for judicial intervention be denied.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to appoint counsel (ECF No. 11) is denied; and
2. The Clerk of the Court is directed to randomly assign this matter to a District Judge. Further, IT IS HEREBY RECOMMENDED that plaintiff's motion for judicial intervention (ECF No. 12) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).