(PC) Andrew v. United States of America

Opinion

1 2 3 4 5 6 7 10 11 NORVELL ANDREW, Case No. 1:22-cv-01290-KES-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. PRELIMINARY INJUNCTION

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

15 Defendants. ORDER DENYING PLAINTIFF’S MOTION 16 FOR APPOINTMENT OF COUNSEL

17 (Doc. 26)

18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in 21 this civil rights action filed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 22 (1971). Pending before the Court is Plaintiff’s second motion for preliminary injunction and 23 temporary restraining order (Doc. 25) and motion for appointment of counsel (Doc. 26), both 24 filed March 22, 2024. 26 The Court screened Plaintiff’s original complaint on July 20, 2023, and found that the 27 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 1 medical staff, counselors, correctional officers and staff of USP Atwater. (Doc. 21). Plaintiff 2 alleges causes of action for cruel and unusual punishment, due process, and “right to medical 3 care” stemming from incidents occurring at USP Atwater while she was housed there in April 4 2020. Plaintiff has been housed at USP Victorville since as early as February 1, 2023. (Doc. 18). 5 The Court has not yet screened Plaintiff’s FAC. 7 Plaintiff’s motion for injunctive relief is unaccompanied by any supporting memorandum, 8 citation to legal authorities or declarations. It appears from Plaintiff’s four-page proposed order 9 that she seeks a preliminary injunction enjoining the DSCC Administrator, and the Warden and 10 Health Services Administrator of USP Victorville, from denying Plaintiff medical treatment for 11 her left eye and left hand and requiring that Plaintiff be taken to bone, eye, glaucoma and 12 gastrointestinal specialists. Plaintiff also seeks injunctive relief to receive back, pain and nerve 13 medications and to receive silboxone (not to be administered via syringe). 14 Separately, Plaintiff seeks to be placed in a “low custody prison,” specifically FCC 15 Yazoo, and for her classification points to be re-scored. Plaintiff also seeks for custodial staff to 16 cease placing holdover inmates on lockdown with regular inmate population, to place televisions 17 in the holdover unit, to ensure SHU inmates receive books from the mail and be permitted to use 18 ink pens, to give certain commissary privileges to SHU inmates, and to permit library access on 19 lockdowns. Also, Plaintiff seeks to enjoin the named parties from sending Plaintiff to active 20 yards given her “bad standings” with former gang members. 21 From her proposed order granting a preliminary injunction, Plaintiff appears to additional 22 forms of relief, including better and more equitable access to religious meals, prescribed medical 23 marijuana, and to have an “erroneous sexual predator designation removed from my record.” 24 A. Jurisdiction and Rule 65 25 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 26 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A plaintiff seeking a 27 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 1 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 2 favor, and that an injunction is in the public interest.” Id. at 20. 3 A “federal court may issue an injunction [only] if it has personal jurisdiction over the 4 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights 5 of persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). “[A]n 6 injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ . . . 7 and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible 8 breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting 9 Zepeda, 753 F.2d at 727, 728 n.1). Furthermore, the pendency of this action does not give the 10 Court jurisdiction to enjoin non-parties based on conduct unrelated to the suit sub judice. See 11 Fed. R. Civ. P. 65(d) (an injunction may bind only the parties, their officers, agents, servants, 12 employees, and attorneys, and other persons “in active concert or participation” with those 13 persons). In other words, the Court’s jurisdiction is limited to the parties in this action and to the 14 viable legal claims upon which this action is proceeding. Id. 15 Separately, the injunctive relief sought must be related to the claims brought in the 16 complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 17 2015) (“When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the 18 court does not have the authority to issue an injunction.”). In other words, “there must be a 19 relationship between the injury claimed in the motion for injunctive relief and the conduct 20 asserted in the underlying complaint.” Id. at 636 (adopting Devose v. Herrington, 42 F.3d 470, 21 471 (8th Cir. 1994)). Absent a nexus between the injury claimed in the motion and the 22 underlying complaint, the Court lacks the authority to grant Plaintiff injunctive relief. Id. A 23 preliminary injunction only is appropriate when it grants relief of the same nature as that to be 24 finally granted. Id. (citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)). 25 B. Discussion 26 Here, the Court lacks jurisdiction to issue the orders Plaintiff seeks. Plaintiff’s first 27 amended complaint names defendants employed at USP Atwater during the incident giving rise 1 Defendants employed at USP Victorville – a location outside of this Court’s jurisdiction – for 2 events unrelated to and occurring long after the events pleaded in Plaintiff’s as-yet screened first 3 amended complaint. Thus, this Court does not have personal jurisdiction or subject matter 4 jurisdiction over prison officials at USP Victorville to whom the orders Plaintiff seeks would be 5 directed. Hence, this Court cannot take any action on Plaintiff’s requests. See Pac. Radiation 6 Oncology, 810 F.3d at 633; Fed. R. Civ. P. 65(d). 8 In her separate motion for appointment of counsel, Plaintiff states that the Court denied 9 an earlier request for appointment of counsel. (Doc. 26 ¶ 4). A review of the docket reflects that 10 assertion is untrue as Plaintiff has not before filed a motion for appointment of counsel. Plaintiff 11 advances three grounds warranting appointment of counsel: (1) she cannot afford counsel; (2) 12 her imprisonment, limited access to a law library and lack of legal knowledge limits her ability to 13 litigate the case; and (3) appointed counsel would “enable Plaintiff to present evidence and cross 14 examine witnesses. 15 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand 16 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 17 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 18 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 19 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 20 to section 1915(e)(1). Rand, 113 F.3d at 1525. 21 Given that the Court has no reasonable method of securing and compensating counsel, 22 the Court will seek volunteer counsel only in extraordinary cases. In determining whether 23 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 24 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 25 complexity of the legal issues involved.” Id. (internal quotation marks & citations omitted). 26 The Court must evaluate the likelihood of Plaintiff’s success on the merits of his claim. 27 Here, while Plaintiff’s original complaint was screened as required by 28 U.S.C. § 1983 and 1 amended complaint in an attempt to remedy the discrepancies noted in the Court’s screening 2 order. (Doc. 21). Because the Court has not yet screened the first amended complaint, it is 3 premature to determine whether the claims asserted are likely to succeed on the merits. See, e.g., 4 Porter v. Rivas, No. 1:23-cv-00105-ADA-CDB (PC), 2023 WL 4765492, at *1 (E.D. Cal. July 5 26, 2023) (“A likelihood of success on the merits determination is not the same as that required 6 at screening; at screening, the Court is tasked with determining whether a plaintiff has 7 sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The 8 merits of the allegations are not tested, for the Court is to consider factual allegations to be true 9 for purposes of screening”). 10 The Court must also evaluate Plaintiff’s ability to articulate her claims pro se in light of 11 the complexity of the legal issues involved. Here, the Court notes that Plaintiff's filings as 12 directed by the Court have been responsive to the Court’s directions and reflect Plaintiff is 13 logical and articulate. (Cf. Docs. 20 and 21). The Court finds Plaintiff is able to articulate her 14 claims in light of their complexity. More specifically, in her as-yet screened first amended 15 complaint, Plaintiff thoroughly outlined in a 15-page, single-spaced narrative the relevant 16 chronology of events and the theories behind her claims for relief. Neither the claims asserted 17 nor the relevant events and transactions are complex. See Bonin v. Vasquez, 999 F.2d 425, 428– 18 29 (9th Cir. 1993) (while Plaintiff may have limited knowledge of the law, the Court does not 19 find the issues in this case “so complex that due process violations will occur absent the presence 20 of counsel”); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (explaining that 21 “[a]lthough discovery was essential..., the need for such discovery does not necessarily qualify 22 the issues involved as ‘complex’”); Headley v Fisher, No. 06 Civ. 6331 (PAC) (KNF), 2008 WL 23 2676601, at *2 (S.D.N.Y. July 7, 2008) (“the factual issues concerning Headley’s retaliation and 24 due process claims is straightforward and not complex”). Notably too, Plaintiff filed an earlier 25 motion for preliminary injunction in this action (Doc. 12), as well as other pleadings for relief 26 (Docs. 11, 13). These filings likewise show an ability to articulate her claims pro se. LaMere v. 27 Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for 1 appointment of counsel, where pleadings demonstrated petitioner had “a good understanding of 2 the issues and the ability to present forcefully and coherently his contentions”). 3 Next, neither incarceration nor indigency are exceptional circumstances warranting the 4 appointment of counsel. See Tri v. Gutierrez, No. 1:22-cv-00836-ADA-SKO (PC), 2023 WL 5 6930783, at *4 (E.D. Cal. Oct. 18, 2023); Dijkstra v. Campos, No. 1:21-cv-01223-HBK, 2022 6 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff's indigence does not qualify ‘as an 7 exceptional circumstance in a prisoner civil rights case’”); Gipbsin v. Kernan, No. 2:12-cv-0556 8 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 2021) (“Plaintiff's inability to afford 9 counsel has no bearing on either his likelihood of success on the merits or his ability to articulate 10 his claims pro se”); Callender v. Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 11 (E.D. Cal. Dec. 10, 2018); Montano v. Solomon, No. 2:07-cv-0800 KJN P, 2010 WL 2403389, at 12 *2 (E.D. Cal. June 11, 2010). 13 The fact an attorney would be better prepared to litigate and try this action does not 14 amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113 15 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court 16 denied appointment of counsel despite fact that pro se prisoner “may well have fared better- 17 particularly in the realm of discovery and the securing of expert testimony”); Courtney v. 18 Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020) 19 (challenges conducting discovery and preparing for trial “are ordinary for prisoners pursuing 20 civil rights claim” and cannot form the basis for appointment of counsel); Thornton v. 21 Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D. Cal. Jan. 11, 2011) 22 (explaining that “[f]actual disputes and anticipated cross-examination of witnesses do not 23 indicate the presence of complex legal issues warranting a finding of exceptional 24 circumstances”). 25 Also, there is little doubt most pro se litigants “find it difficult to articulate [their] 26 claims,” and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. 27 For this reason, in the absence of counsel, federal courts employ procedures which are highly 1 pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se 2 in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any 3 benefit of the doubt. Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 4 1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his 6 claims” in light of the relative complexity of the matter, the “exceptional circumstances” which 7 might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer 8 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 9 In sum, the Court finds no exceptional circumstances warranting the appointment of 10 counsel in this matter. Rand, 113 F.3d at 1525 12 Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for appointment of 13 counsel (Doc. 26) is DENIED. 14 And it is FURTHER RECOMMENDED that the Court DENY Plaintiff’s motion for a 15 preliminary injunction. (Doc. 25). 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 18 (14) days after being served with these Findings and Recommendations, a party may file written 19 objections with the Court. The document should be titled, “Objections to Magistrate Judge’s 20 Findings and Recommendations.” Parties are advised that failure to file objections within the 21 / / / 22 / / / 23 / / / 24 / / /

25 26 27 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 | IT IS SO ORDERED. “| Dated: _-Mareh 25, 2024 | nnd Rr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28