(PC) Andrew v. United States of America

Opinion

NORVELL ANDREW, Case No. 1:22-cv-01290-KES-CDB (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR v. PRELIMINARY INJUNCTION

UNITED STATES OF AMERICA, et al., (Doc. 25)

Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL

(Doc. 26)

FOURTEEN (14) DAY DEADLINE Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action filed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Pending before the Court is Plaintiff’s second motion for preliminary injunction and temporary restraining order (Doc. 25) and motion for appointment of counsel (Doc. 26), both filed March 22, 2024. The Court screened Plaintiff’s original complaint on July 20, 2023, and found that the complaint failed to state a claim. (Doc. 19). On August 12, 2023, Plaintiff filed a first amended complaint (FAC) in which she names as Defendants the warden, associate warden, and various medical staff, counselors, correctional officers and staff of USP Atwater. (Doc. 21). Plaintiff alleges causes of action for cruel and unusual punishment, due process, and “right to medical care” stemming from incidents occurring at USP Atwater while she was housed there in April 2020. Plaintiff has been housed at USP Victorville since as early as February 1, 2023. (Doc. 18). The Court has not yet screened Plaintiff’s FAC. Plaintiff’s motion for injunctive relief is unaccompanied by any supporting memorandum, citation to legal authorities or declarations. It appears from Plaintiff’s four-page proposed order that she seeks a preliminary injunction enjoining the DSCC Administrator, and the Warden and Health Services Administrator of USP Victorville, from denying Plaintiff medical treatment for her left eye and left hand and requiring that Plaintiff be taken to bone, eye, glaucoma and gastrointestinal specialists. Plaintiff also seeks injunctive relief to receive back, pain and nerve medications and to receive silboxone (not to be administered via syringe). Separately, Plaintiff seeks to be placed in a “low custody prison,” specifically FCC Yazoo, and for her classification points to be re-scored. Plaintiff also seeks for custodial staff to cease placing holdover inmates on lockdown with regular inmate population, to place televisions in the holdover unit, to ensure SHU inmates receive books from the mail and be permitted to use ink pens, to give certain commissary privileges to SHU inmates, and to permit library access on lockdowns. Also, Plaintiff seeks to enjoin the named parties from sending Plaintiff to active yards given her “bad standings” with former gang members. From her proposed order granting a preliminary injunction, Plaintiff appears to additional forms of relief, including better and more equitable access to religious meals, prescribed medical marijuana, and to have an “erroneous sexual predator designation removed from my record.” A. Jurisdiction and Rule 65 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A plaintiff seeking a preliminary injunction must establish 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.” Id. at 20. A “federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ . . . and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda, 753 F.2d at 727, 728 n.1). Furthermore, the pendency of this action does not give the Court jurisdiction to enjoin non-parties based on conduct unrelated to the suit sub judice. See Fed. R. Civ. P. 65(d) (an injunction may bind only the parties, their officers, agents, servants, employees, and attorneys, and other persons “in active concert or participation” with those persons). In other words, the Court’s jurisdiction is limited to the parties in this action and to the viable legal claims upon which this action is proceeding. Id. Separately, the injunctive relief sought must be related to the claims brought in the complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 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 the authority to issue an injunction.”). In other words, “there must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint.” Id. at 636 (adopting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). Absent a nexus between the injury claimed in the motion and the underlying complaint, the Court lacks the authority to grant Plaintiff injunctive relief. Id. A preliminary injunction only is appropriate when it grants relief of the same nature as that to be finally granted. Id. (citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)). B. Discussion Here, the Court lacks jurisdiction to issue the orders Plaintiff seeks. Plaintiff’s first amended complaint names defendants employed at USP Atwater during the incident giving rise Defendants employed at USP Victorville – a location outside of this Court’s jurisdiction – for events unrelated to and occurring long after the events pleaded in Plaintiff’s as-yet screened first amended complaint. Thus, this Court does not have personal jurisdiction or subject matter jurisdiction over prison officials at USP Victorville to whom the orders Plaintiff seeks would be directed. Hence, this Court cannot take any action on Plaintiff’s requests. See Pac. Radiation Oncology, 810 F.3d at 633; Fed. R. Civ. P. 65(d). In her separate motion for appointment of counsel, Plaintiff states that the Court denied an earlier request for appointment of counsel. (Doc. 26 ¶ 4). A review of the docket reflects that assertion is untrue as Plaintiff has not before filed a motion for appointment of counsel. Plaintiff advances three grounds warranting appointment of counsel: (1) she cannot afford counsel; (2) her imprisonment, limited access to a law library and lack of legal knowledge limits her ability to litigate the case; and (3) appointed counsel would “enable Plaintiff to present evidence and cross examine witnesses. Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Given that the Court has no reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in extraordinary cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the 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.” Id. (internal quotation marks & citations omitted). The Court must evaluate the likelihood of Plaintiff’s success on the merits of his claim. Here, while Plaintiff’s original complaint was screened as required by 28 U.S.C. § 1983 and amended complaint in an attempt to remedy the discrepancies noted in the Court’s screening order. (Doc. 21). Because the Court has not yet screened the first amended complaint, it is premature to determine whether the claims asserted are likely to succeed on the merits. See, e.g., Porter v. Rivas, No. 1:23-cv-00105-ADA-CDB (PC), 2023 WL 4765492, at *1 (E.D. Cal. July 26, 2023) (“A likelihood of success on the merits determination is not the same as that required at screening; at screening, the Court is tasked with determining whether a plaintiff has sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested, for the Court is to consider factual allegations to be true for purposes of screening”). The Court must also evaluate Plaintiff’s ability to articulate her claims pro se in light of the complexity of the legal issues involved. Here, the Court notes that Plaintiff's filings as directed by the Court have been responsive to the Court’s directions and reflect Plaintiff is logical and articulate. (Cf. Docs. 20 and 21). The Court finds Plaintiff is able to articulate her claims in light of their complexity. More specifically, in her as-yet screened first amended complaint, Plaintiff thoroughly outlined in a 15-page, single-spaced narrative the relevant chronology of events and the theories behind her claims for relief. Neither the claims asserted nor the relevant events and transactions are complex. See Bonin v. Vasquez, 999 F.2d 425, 428– 29 (9th Cir. 1993) (while Plaintiff may have limited knowledge of the law, the Court does not find the issues in this case “so complex that due process violations will occur absent the presence of counsel”); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (explaining that “[a]lthough discovery was essential..., the need for such discovery does not necessarily qualify the issues involved as ‘complex’”); Headley v Fisher, No. 06 Civ. 6331 (PAC) (KNF), 2008 WL 2676601, at *2 (S.D.N.Y. July 7, 2008) (“the factual issues concerning Headley’s retaliation and due process claims is straightforward and not complex”). Notably too, Plaintiff filed an earlier motion for preliminary injunction in this action (Doc. 12), as well as other pleadings for relief (Docs. 11, 13). These filings likewise show an ability to articulate her claims pro se. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of counsel, where pleadings demonstrated petitioner had “a good understanding of the issues and the ability to present forcefully and coherently his contentions”). Next, neither incarceration nor indigency are exceptional circumstances warranting the appointment of counsel. See Tri v. Gutierrez, No. 1:22-cv-00836-ADA-SKO (PC), 2023 WL 6930783, at *4 (E.D. Cal. Oct. 18, 2023); Dijkstra v. Campos, No. 1:21-cv-01223-HBK, 2022 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff's indigence does not qualify ‘as an exceptional circumstance in a prisoner civil rights case’”); Gipbsin v. Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 2021) (“Plaintiff's inability to afford counsel has no bearing on either his likelihood of success on the merits or his ability to articulate his claims pro se”); Callender v. Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018); Montano v. Solomon, No. 2:07-cv-0800 KJN P, 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010). The fact an attorney would be better prepared to litigate and try this action does not amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may well have fared better- particularly in the realm of discovery and the securing of expert testimony”); Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020) (challenges conducting discovery and preparing for trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis for appointment of counsel); Thornton v. Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D. Cal. Jan. 11, 2011) (explaining that “[f]actual disputes and anticipated cross-examination of witnesses do not indicate the presence of complex legal issues warranting a finding of exceptional circumstances”). Also, there is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, federal courts employ procedures which are highly pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity of the matter, the “exceptional circumstances” which might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). In sum, the Court finds no exceptional circumstances warranting the appointment of counsel in this matter. Rand, 113 F.3d at 1525 Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for appointment of counsel (Doc. 26) is DENIED. And it is FURTHER RECOMMENDED that the Court DENY Plaintiff’s motion for a preliminary injunction. (Doc. 25). These Findings and Recommendations will be submitted to the United States District Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, a party may file written objections with the Court. The document should be titled, “Objections to Magistrate Judge’s Findings and Recommendations.” Parties are advised that failure to file objections within the / / / / / / / / / / / /

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. “| Dated: _-Mareh 25, 2024 | nnd Rr UNITED STATES MAGISTRATE JUDGE