1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER M. ARENA, Case No. 1:20-cv-00617-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 9) 14 NAVARRO, et al., ORDER DIRECTING CLERK OF COURT TO 15 Defendants. FORWARD ORDER TO WARDEN OF CALIFORNIA STATE PRISON, CORCORAN 16 17 Plaintiff Peter M. Arena (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 I. Service on Warden 20 Plaintiff has raised serious and concerning allegations regarding past and ongoing 21 retaliation he has faced at the hands of correctional staff at California State Prison, Corcoran. 22 This retaliation has apparently been recently perpetrated, at least in part, by correctional staff 23 named as defendants in the instant lawsuit, which itself alleges that Plaintiff has suffered 24 retaliation—in the form of beatings at the hands of correctional staff and denial of medical care 25 following the attacks—for filing grievances and reporting staff misconduct. Such allegations, if 26 true, are of great concern to the Court. Such retaliation includes officers obstructing Plaintiff’s 27 access to the prison grievance system, depriving Plaintiff of food and exacerbating an existing 28 medical condition, threatening and carrying out physical attacks for Plaintiff’s filing of lawsuits 1 and grievances, and delaying or depriving Plaintiff of needed medical care following these 2 attacks. In light of the seriousness of these allegations, the Court finds it appropriate to serve a 3 copy of this order on the Warden of California State Prison, Corcoran, that he might be made 4 aware of the allegations Plaintiff has raised against these officers and take any appropriate actions 5 that are warranted under the circumstances. 6 II Motion to Appoint Counsel 7 Currently before the Court is Plaintiff’s motion to appoint counsel, filed June 18, 2020. 8 (ECF No. 9.) In his motion, Plaintiff states that he cannot afford to hire a lawyer, his 9 imprisonment will greatly limit his ability to litigate this case, and a lawyer would assist Plaintiff 10 to apply the law properly to the complex issues in this case and assist Plaintiff in present evidence 11 and cross examining witnesses at trial. Plaintiff states that he suffers brain damage, impulse 12 control problems, and severe mental illness, and has required assistance in filing this suit. 13 Plaintiff further alleges that after filing this lawsuit, he received retaliation, death threats, denial 14 of food, and constant harassment. (Id.) 15 Plaintiff reports that on May 18, 2020, Sergeants Moreno and Encinas threatened him and 16 that a false RVR was authored against Plaintiff on the same date. Both Sergeants told Plaintiff he 17 will be beaten again and all his property taken, for reporting staff misconduct. Lieutenant Ruiz 18 has also told Plaintiff that now he will be beaten. Plaintiff states that he fears for his life. (Id.) 19 Plaintiff further reports that on May 24, 2020, Correctional Officer Allison came to 20 Plaintiff’s cell door and threatened to attack him again for filing this lawsuit. Plaintiff states that 21 he fears for his safety and has already requested a restraining order, but superiors at the institution 22 allow and assist officers in criminal attacks as retaliation for reporting abuse. Plaintiff alleges 23 that he has submitted administrative appeals against all retaliation received, but the appeals are 24 not being processed and are being removed from the mail by Sergeant Moreno (a named 25 defendant in this suit). Plaintiff states that his legal mail is opened when addressed to any 26 investigative office, and is not mailed out. In addition, because Plaintiff is diabetic and takes 27 medication to lower his blood sugar, he becomes sick when he is denied food. (Id.) 28 Plaintiff also states that he was brutally attached again on May 25, 2020, in retaliation for 1 filing this suit, resulting in injury to both shoulders and his left arm and wrist, rendering him 2 unable to write properly and function with either arm. Plaintiff states that the attack was carried 3 out by Sergeant Moreno and six or seven more officers, and he was denied medical treatment for 4 his serious injuries. At some later date, it appears Plaintiff was transported to an outside hospital 5 to receive surgery from the attack by Officers Cervantes, Ceda, Ceja, Berlanger, and Sergeant 6 Moreno. Plaintiff claims that the attack was in retaliation for filing suit. Plaintiff requests that 7 the Court appoint him counsel to represent him in this case.1 (Id.) 8 III. Discussion 9 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 10 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 11 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 12 1 The Court notes that despite the serious allegations Plaintiff has made concerning the 13 physical retaliation he faces at the hands of correctional staff, the only specific relief he seeks in this motion is for the appointment of counsel. In the future, if Plaintiff seeks a more specific form 14 of relief from the Court, such a request might be more appropriately made as a motion for 15 preliminary injunction against specific officers. For Plaintiff’s reference, the legal standards for a motion for preliminary injunction are provided below. 16 “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 17 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 18 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 19 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 20 Federal courts are courts of limited jurisdiction and in considering a request for preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 21 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 22 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 23 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 24 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the 25 Federal right.” Furthermore, the pendency of this action does not give the Court jurisdiction over prison 26 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER M. ARENA, Case No. 1:20-cv-00617-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 9) 14 NAVARRO, et al., ORDER DIRECTING CLERK OF COURT TO 15 Defendants. FORWARD ORDER TO WARDEN OF CALIFORNIA STATE PRISON, CORCORAN 16 17 Plaintiff Peter M. Arena (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 I. Service on Warden 20 Plaintiff has raised serious and concerning allegations regarding past and ongoing 21 retaliation he has faced at the hands of correctional staff at California State Prison, Corcoran. 22 This retaliation has apparently been recently perpetrated, at least in part, by correctional staff 23 named as defendants in the instant lawsuit, which itself alleges that Plaintiff has suffered 24 retaliation—in the form of beatings at the hands of correctional staff and denial of medical care 25 following the attacks—for filing grievances and reporting staff misconduct. Such allegations, if 26 true, are of great concern to the Court. Such retaliation includes officers obstructing Plaintiff’s 27 access to the prison grievance system, depriving Plaintiff of food and exacerbating an existing 28 medical condition, threatening and carrying out physical attacks for Plaintiff’s filing of lawsuits 1 and grievances, and delaying or depriving Plaintiff of needed medical care following these 2 attacks. In light of the seriousness of these allegations, the Court finds it appropriate to serve a 3 copy of this order on the Warden of California State Prison, Corcoran, that he might be made 4 aware of the allegations Plaintiff has raised against these officers and take any appropriate actions 5 that are warranted under the circumstances. 6 II Motion to Appoint Counsel 7 Currently before the Court is Plaintiff’s motion to appoint counsel, filed June 18, 2020. 8 (ECF No. 9.) In his motion, Plaintiff states that he cannot afford to hire a lawyer, his 9 imprisonment will greatly limit his ability to litigate this case, and a lawyer would assist Plaintiff 10 to apply the law properly to the complex issues in this case and assist Plaintiff in present evidence 11 and cross examining witnesses at trial. Plaintiff states that he suffers brain damage, impulse 12 control problems, and severe mental illness, and has required assistance in filing this suit. 13 Plaintiff further alleges that after filing this lawsuit, he received retaliation, death threats, denial 14 of food, and constant harassment. (Id.) 15 Plaintiff reports that on May 18, 2020, Sergeants Moreno and Encinas threatened him and 16 that a false RVR was authored against Plaintiff on the same date. Both Sergeants told Plaintiff he 17 will be beaten again and all his property taken, for reporting staff misconduct. Lieutenant Ruiz 18 has also told Plaintiff that now he will be beaten. Plaintiff states that he fears for his life. (Id.) 19 Plaintiff further reports that on May 24, 2020, Correctional Officer Allison came to 20 Plaintiff’s cell door and threatened to attack him again for filing this lawsuit. Plaintiff states that 21 he fears for his safety and has already requested a restraining order, but superiors at the institution 22 allow and assist officers in criminal attacks as retaliation for reporting abuse. Plaintiff alleges 23 that he has submitted administrative appeals against all retaliation received, but the appeals are 24 not being processed and are being removed from the mail by Sergeant Moreno (a named 25 defendant in this suit). Plaintiff states that his legal mail is opened when addressed to any 26 investigative office, and is not mailed out. In addition, because Plaintiff is diabetic and takes 27 medication to lower his blood sugar, he becomes sick when he is denied food. (Id.) 28 Plaintiff also states that he was brutally attached again on May 25, 2020, in retaliation for 1 filing this suit, resulting in injury to both shoulders and his left arm and wrist, rendering him 2 unable to write properly and function with either arm. Plaintiff states that the attack was carried 3 out by Sergeant Moreno and six or seven more officers, and he was denied medical treatment for 4 his serious injuries. At some later date, it appears Plaintiff was transported to an outside hospital 5 to receive surgery from the attack by Officers Cervantes, Ceda, Ceja, Berlanger, and Sergeant 6 Moreno. Plaintiff claims that the attack was in retaliation for filing suit. Plaintiff requests that 7 the Court appoint him counsel to represent him in this case.1 (Id.) 8 III. Discussion 9 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 10 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 11 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 12 1 The Court notes that despite the serious allegations Plaintiff has made concerning the 13 physical retaliation he faces at the hands of correctional staff, the only specific relief he seeks in this motion is for the appointment of counsel. In the future, if Plaintiff seeks a more specific form 14 of relief from the Court, such a request might be more appropriately made as a motion for 15 preliminary injunction against specific officers. For Plaintiff’s reference, the legal standards for a motion for preliminary injunction are provided below. 16 “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 17 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 18 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 19 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 20 Federal courts are courts of limited jurisdiction and in considering a request for preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 21 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 22 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 23 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 24 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the 25 Federal right.” Furthermore, the pendency of this action does not give the Court jurisdiction over prison 26 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. 27 United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to the viable legal claims upon which this action is proceeding. Summers, 555 28 U.S. at 491−93; Mayfield, 599 F.3d at 969. 1 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 2 (1989). However, in certain exceptional circumstances the court may request the voluntary 3 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the Court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 7 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 The Court has considered Plaintiff’s request, including the concerning allegations 10 regarding retaliation he has suffered at the hands of the correctional officers named as defendants 11 in this suit, but does not find the required exceptional circumstances. Even if it is assumed that 12 Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, 13 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 14 by prisoners who are proceeding pro se and suffering from psychological and physical ailments 15 almost daily. These litigants also must conduct legal research and learn to follow Court orders 16 without the assistance of counsel. 17 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 18 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not yet been screened to 19 determine whether it states cognizable claims upon which it may proceed. Finally, based on a 20 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 21 his claims. 22 IV. Order 23 Accordingly, it is HEREBY ORDERED that: 24 1. Plaintiff’s motion to appoint counsel, (ECF No. 9), is DENIED, without prejudice; and 25 /// 26 /// 27 /// 28 /// 1 2. The Clerk of the Court is directed to forward a copy of this order and Plaintiff’s motion, 2 (ECF No. 9), to the Warden of California State Prison, Corcoran, that the Warden might 3 be made aware of the serious allegations Plaintiff has raised regarding ongoing retaliation 4 and physical abuse for filing the instant lawsuit. 5 IT IS SO ORDERED. 6
7 Dated: June 22, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8
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