(PC) Cortijo v. St. Andre

• Court: District Court, E.D. California
• Decided: October 11, 2023
• Docket: 2:23-cv-00454
• Status: Unknown

Opinion

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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEANGELO CORTIJO, No. 2:23-cv-0454 DB P 12 Plaintiff, 13 v. ORDER 14 ST. ANDRE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendants denied him the ability to make phone calls, 19 retaliated against him, and discriminated against him in violation of his constitutional rights. 20 Presently before the court is plaintiff’s motion to proceed in forma pauperis (ECF No. 2), motion 21 to appoint counsel (ECF No. 5), motion for preliminary injunction (ECF No. 8), and his 22 complaint (ECF No. 1) for screening. For the reasons set forth below, the undersigned will grant 23 the motion to proceed in forma pauperis, deny the motion to appoint counsel, deny the motion for 24 preliminary injunction without prejudice, and dismiss the complaint with leave to amend. 25 IN FORMA PAUPERS 26 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 27 § 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 28 1 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 2 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 3 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 4 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 5 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 6 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 8 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 9 § 1915(b)(2). SCREENING 10 I. Legal Standards 11 The court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 13 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 14 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 15 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 16 U.S.C. § 1915A(b)(1) & (2). 17 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 18 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 19 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 20 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 21 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 22 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 26 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 27 (1957)). 28 1 However, in order to survive dismissal for failure to state a claim a complaint must 2 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 3 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 4 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 5 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 6 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 7 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 8 The Civil Rights Act under which this action was filed provides as follows: 9 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 10 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 11 or other proper proceeding for redress. 12 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 13 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 14 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 15 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 16 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 17 omits to perform an act which he is legally required to do that causes the deprivation of which 18 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 20 their employees under a theory of respondeat superior and, therefore, when a named defendant 21 holds a supervisorial position, the causal link between him and the claimed constitutional 22 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 23 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 24 concerning the involvement of official personnel in civil rights violations are not sufficient. See 25 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 26 II. Allegations in the Complaint 27 Plaintiff states the events giving rise to his claims occurred while he was a California 28 Department of Corrections and Rehabilitation (“CDCR”) inmate housed at High Desert State 1 Prison (“HDSP”). (ECF No. 7 at 1.) He has named the following defendants: (1) St. Andre, 2 HDSP warden; (2) Aineswroth, HDSP correctional officer; (3) Alverez, HDSP correctional 3 officer; (4) Villareal, HDSP correctional officer; (5) Samantha Kissane, chief centralized 4 screening team office of internal affairs; (6) C. Reynolds, HDSP correctional sergeant; (7) officer 5 Rodriguez; (8) officer Romo, HDSP; (9) Dr. Fanettie, Phd; (10) Jane Doe, “(Hispanic female 6 nurse)”; (11) Parra, HDSP correctional officer; and (12) John Doe, HDSP officer. (Id. at 2-3.) 7 Plaintiff alleges warden St. Andre “created local operating procedure 617 which mandated 8 a blanket restriction without regard to individual case factors, restricting tablet content for 9 incarcerated persons in segregated housing.” (Id. at 4.) He states that operating procedure 617, 10 “denies inmates their right to call their children, parents[,] and friends.” He claims that the 11 blanket restriction violates his First Amendment rights. (Id. at 5.) 12 In support of his claim, plaintiff cites a resolution from the United Nations regarding rules 13 for the treatment of prisoners which requires that incarcerated individuals be permitted to 14 maintain regular communication with family and friends and that disciplinary sanctions not 15 include prohibition of family contact. (Id. at 6.) 16 Plaintiff states that St. Andre failed to protect him from retaliation and did not take 17 appropriate action in response to staff misconduct complaints. (Id. at 7.) He further alleges 18 HDSP has a “well known history of officer misconduct due to retaliation for complaints filed 19 against employees and administrators!” (Id.) He claims he was retaliated against “by means of 20 deprivation from family and friend contact, contaminated food trays, resulting in physical injury, 21 and harassment.” He further alleges that St. Andre is “chiefly responsible because he has a duty 22 to ensure staff misconduct complaints are handled in a safe manner” and he “was negligent when 23 he failed to temporarily remove staff who were retaliating on plaintiff as well for other 24 oversights.” (Id.) 25 He states that on September 26, 2022, officer Romo opened a secured door leading to a 26 violent interaction. (Id. at 13.) He further alleges that it was done to set plaintiff up so that he 27 would be injured or receive a long SHU term in retaliation for filing grievances. (Id. at 8.) He 28 claims he was later given an “excessive” term of imprisonment in a segregated housing unit for 1 conduct that is common in prison. Plaintiff claims “[t]he Investigation report package” showed 2 that prison officials falsified allegations to “aggragate [sic] the circumstances of the alleged 3 incident.” 4 Plaintiff states he filed grievances complaining about unspecified actions of correctional 5 officers Ainesworth and Alverez. (Id. at 9.) Plaintiff states his complaint was informally 6 resolved by the former warden “when he personally ordered” Ainesworth and Alverez “to provide 7 equal phone access according to the governors budget.” (Id.) He alleges that “for a period of 8 time” Ainesworth and Alverez “informally retaliated” against him until he was transferred out of 9 HDSP. When plaintiff returned to HDSP a few months later, tablets were issued to inmates in the 10 general population. He claims he was denied a tablet for about one month. He filed an appeal 11 that was granted by Howard Moseley, Associate Director of CDCR. 12 Plaintiff alleges that Reynolds, facility D sergeant, was “responsible” for defendants 13 Ainesworth and Alverez and also “‘cover[ed] up’ and allowed retaliation to occur in the first 14 incident.” (Id. at 10.) He further alleges Reynolds and Romo conspired to set him up. He states 15 Reynolds allowed Romo to open a secured door “which resulted in an incident which is currently 16 awaiting possible criminal charges.” (Id.) He further claims Reynolds “falsified state documents 17 which made it seem as if the inmates were sole[l]y responsible for what occur[r]ed.” (Id.) 18 Plaintiff states he received a 2-year SHU (Security Housing Unit) term. He acknowledges 19 that an ICC (Institutional Classification Hearing) hearing was held, but states that he was not 20 given a “meaningful opportunity to mitigate or defend against” the term. He states the term is 21 “unusual in relation to how others similarly situated are treated.” (Id.) 22 He further alleges non-party D. Davis and officer Rodriguez prevented him from filing a 23 complaint regarding the ICC hearing results. (Id. at 11.) He states that while in “Z unit or 24 STRH” he has filed at least 35 complaints related to discrimination, retaliation, and living 25 conditions. (Id.) He states that complaints were denied when reviewing staff failed to properly 26 investigate the claims. 27 Plaintiff alleges officers retaliated by recruiting Dr. Fanetti “to control his professional 28 and medical opinion.” (Id.) He further alleges Fanetti issued a report minimizing plaintiff’s 1 mental health issues and rendered a report that contradicts “medical professionals norms” and 2 plaintiff’s “long standing and publicly well know [sic] mental history.” (Id. at 11-12.) 3 He claims that Kissane, wrongfully amended a grievance plaintiff filed from a staff 4 misconduct complaint to a regular grievance. (Id. at 13.) He claims the grievance concerned 5 retaliation by Alverez and Ainesworth by means of tampering with phone calls to prevent the call 6 from going through. (Id.) 7 Plaintiff alleges “HDSP is racist towards black inmates.” (Id. at 16.) He identifies 8 himself as biracial, stating he is black and Hispanic and states that he is being treated more 9 harshly “in part due to [his] race.” He alleges warden St. Andre “has failed to ensure that black 10 inmates such as [him]self is treated fairly and equally when he: allowed complaints to be 11 mishandled when it concerned a race issue, imposed longer SHU terms on black inmates than on 12 inmates of other races, failed to ensure racial balanced shift(s) of officers in the short term 13 restricted housing unit or ASU, resulting in unfair and bias treatment.” 14 Plaintiff indicates that this claim was not exhausted. He states that he did not submit an 15 administrative appeal regarding the allegations in this claim because he fears additional retaliation 16 for filing such claims and “several complaints were mishandled.” (Id.) 17 III. Does Plaintiff State a Claim under § 1983? 18 A. Denial of Telephone Privileges 19 Plaintiff claims that St. Andre has violated his First Amendment rights based on a local 20 operating procedure that denies telephone privileges to inmates in the SHU. (ECF No. 7 at 4-6.) 21 1. First Amendment Rights of Inmates 22 A prison inmate “retains those First Amendment rights that are not inconsistent with his 23 status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, 24 challenges to prison restrictions that are asserted to inhibit First Amendment interests must be 25 analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody 26 and care the prisoner has been committed in accordance with due process of law.” Pell v. 27 Procunier, 417 U.S. 817, 822 (1974). To state a claim an inmate must allege facts showing that 28 “the type of activity he engaged in was protected under the [F]irst [A]mendment and that the state 1 impermissibly infringed on his right to engage in the protected activity.” Rizzo v. Dawson, 778 2 F.2d 527, 531 (9th Cir. 1985). 3 “[L]oss of telephone privileges does not constitute a constitutional violation given the 4 availability of alternative means of communication by mail or in person.” Bryant v. Cortez, 536 5 F. Supp. 2d 1160, 1167 (C.D. Cal. Jan. 23, 2008) (citing Overton v. Bazzetta, 539 U.S. 126, 135 6 (2003)); see also Williams v. ICC Committee, 812 F. Supp. 1029, 1034 (N.D. Cal. 1992) (“This 7 court is aware of no authority to support a claim of constitutional violation due to the deprivation 8 of telephone access for convicted prisoners.” (citing Toussant v. McCarthy, 597 F. Supp. 1388, 9 1413 (N.D. Cal. 1984))). 10 Because there are alternative means of communication available to plaintiff, he cannot 11 state a claim based on loss of phone privileges imposed due to disciplinary sanctions. 12 2. Standard Minimum Rules for the Treatment of Prisoners 13 Plaintiff claims that denial of communication with family and friends violates the United 14 Nations Standard Minimum Rules for the Treatment of Prisoners. (ECF No. 7 at 6.) However, 15 [t]he Standard Minimum Rules for the Treatment of Prisoners (“Standard Minimum Rules”) . . . fail as a source of justiciable rights. 16 This document was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 “to 17 set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of 18 institutions.” Standard Minimum Rules ¶ 1. It is not a treaty, and it is not binding on the United States. Even if it were a self-executing 19 treaty, the document does not purport to serve as a source of private rights. 20 21 Serra v. Lappin, 600 F.3d 1191, 1197 (9th Cir. 2010). Accordingly, plaintiff’s claim that 22 deprivation of phone privileges violated his rights under the Standard Minimum Rules for the 23 Treatment of Prisoners is not actionable in a § 1983 action. Knapp v. Cate, No. 1:08-cv-1779 24 BAM PC, 2011 WL 5416342 at *7 (E.D. Cal. Nov. 8, 2011). 25 3. Restrictions Imposed on SHU Inmates 26 Any allegation that plaintiff’s rights were violated because he was retained in segregated 27 housing is not sufficient, on its own, to show a violation of his rights. An inmate cannot state a 28 claim for violation of his rights under the Eighth Amendment “simply by pointing to the 1 generalized ‘psychological pain,’ – i.e., the loneliness, frustration, depression or extreme 2 boredom—that inmates may experience by virtue of their confinement in the [secured housing 3 unit].” Madrid v. Gomez, 889 F. Supp. 1146, 1264 (N.D. Cal. 1995) (citing Toussaint, 801 F.2d 4 at 1107-08). To the extent that plaintiff alleges confinement in SHU housing exposed him to 5 conditions that were harsher than outside of SHU housing, the allegations in the complaint are 6 insufficient to state a cognizable claim. 7 B. Retaliation 8 “Within the prison context, a viable claim of First Amendment retaliation entails five 9 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 10 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and 13 citations omitted). 14 Plaintiff has alleged that he engaged in protected activity, filing grievances, and that 15 thereafter defendants took adverse action against him. Plaintiff has alleged that officers opened a 16 secured door leading to a violent interaction, ensured he received an excessively long term in 17 segregated housing, delayed giving him a tablet. (ECF No. 7 at 7-13.) However, in order to state 18 a claim, he must state facts showing that the adverse action was taken because of plaintiff’s 19 protected activity. 20 Here, the complaint does not contain facts alleging that the defendants who took adverse 21 action against him were aware that he filed grievances.1 In any amended complaint, plaintiff 22 must clearly identify which wrongs were committed by which defendants. See Fegbohungbe v. 23 Caltrans, No. 13-cv-3801 WHO, 2014 WL 644008, at *3 n.4 (finding “[t]he general allegation 24 regarding ‘defendants’ is . . . insufficient on its face because it does not identify which specific 25 defendants” were responsible for the alleged harms); Chevalier v. Ray and Joan Kroc Corps. 26

27 1 The court notes that he alleges Ainseworth and Alverez “informally retaliated” against him (ECF No. 7 at 9), but he has not provided any facts indicating how these defendants “informally 28 retaliated against him.” 1 Cmty. Ctr., No. C 11-4891 SBA, 2012 WL 2088819, at *2 (N.D. Cal. June 8, 2012) (finding 2 complaint failed to “identify which wrongs were committed by which Defendant” insufficient to 3 state a claim). He must also include facts showing that defendants took adverse action against 4 him because he engaged in protected activity. Accordingly, his allegations are insufficient to 5 state a cognizable retaliation claim. 6 C. Equal Protection 7 Plaintiff claims that he was treated differently than other similarly situated individuals. 8 (ECF No. 7 at 16.) 9 The Equal Protection Clause requires that persons who are similarly situated be treated 10 alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Hartmann v. Calif. 11 Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 12 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). State prison 13 inmates retain a right to equal protection of the laws guaranteed by the Fourteenth Amendment. 14 Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Lee v. Washington, 390 U.S. 333, 15 334 (1968)). An equal protection claim may be established by showing that defendants 16 intentionally discriminated against plaintiff based on his membership in a protected class, 17 Hartmann, 707 F.3d at 1123, or that similarly situated individuals were intentionally treated 18 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Dept. 19 of Agriculture, 553 U.S. 591, 601-02 (2008). 20 Plaintiff’s allegations are too conclusory to state a claim at this time. He has alleged that 21 he was treated differently from similarly situated inmates. (ECF No. 7 at 16.) However, restating 22 the elements is insufficient to state a cognizable claim. In any amended complaint, plaintiff 23 should state specific allegations showing how his treatment was different than the treatment of 24 similar situated inmates. 25 D. Grievance Procedure 26 Plaintiff’s allegations against defendant Kissane are based solely on her response to his 27 grievances. (ECF No. 7 at 9, 13.) 28 //// 1 The Ninth Circuit has held that inmates have no protected interest in an inmate grievance 2 procedure arising directly from the Due Process Clause. See Ramirez v. Galaza, 334 F.3d 850, 3 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific grievance 4 procedure”); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (there is no protected liberty 5 interest to a specific grievance procedure). Thus, plaintiff cannot state a claim based on prison 6 officials’ actions in processing and/or responding to his grievance. See Buckley v. Barlow, 997 7 F.2d 494, 495 (8th Cir. 1993) (the administrative “grievance procedure is a procedural right only, 8 it does not confer any substantive right upon the inmates. Hence, it does not give rise to a 9 protected liberty interest requiring the procedural protections envisioned by the fourteenth 10 amendment . . . Thus, defendants’ failure to process any of [plaintiff’s] grievances, without more, 11 is not actionable under section 1983.”) (internal quotations omitted). Accordingly, the allegations 12 in the complaint are insufficient to show that defendant Kissane violated his rights. 13 E. Supervisory Liability 14 Plaintiff has alleged HDSP Warden St. Andre failed to properly respond to staff 15 complaints, ensure plaintiff was protected from retaliation, and did not remove staff who were 16 retaliating. (ECF No. 7 at 7.) 17 A plaintiff must allege facts showing the failure to train resulted from a defendant’s 18 “deliberate” or “conscious” choice and that a sufficient causal connection exists between the 19 supervisor’s wrongful conduct and the alleged constitutional violation. Canell v. Lightner, 143 20 F.3d at 1210, 1213 (9th Cir. 1998) (citation omitted). 21 Additionally, the Supreme Court has rejected the notion that a supervisory defendant can 22 be liable based on “knowledge and acquiescence in their subordinates’” unconstitutional conduct 23 because government officials “may not be held liable for the misdeeds of their agents.” Ashcroft 24 v. Iqbal, 556 U.S. 662, 677 (2009). Thus, plaintiff fails to state a retaliation claim against Warden 25 St. Andre based on his allegation that St. Andre allowed certain actions to take place. 26 AMENDING THE COMPLAINT 27 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 28 and the action that defendant took that violated his constitutional rights. The court is not required 1 to review exhibits to determine what plaintiff’s charging allegations are as to each named 2 defendant. The charging allegations must be set forth in the amended complaint, so defendants 3 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 4 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 5 each claim. See Fed. R. Civ. P. 8(a). 6 Any amended complaint must show the federal court has jurisdiction, the action is brought 7 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 8 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 9 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 10 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 11 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 12 he is legally required to do that causes the alleged deprivation). 13 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 14 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 15 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 16 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 17 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 18 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 19 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 20 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 21 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 22 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 23 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 24 An amended complaint must be complete in itself without reference to any prior pleading. 25 E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded. 26 Any amended complaint should contain all of the allegations related to his claim in this action. If 27 plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended 28 complaint. 1 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 2 has evidentiary support for his allegations, and for violation of this rule the court may impose 3 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 4 MOTION TO APPOINT COUNSEL 5 Plaintiff has filed a motion to appoint counsel. Therein he argues the court should appoint 6 counsel because he cannot afford counsel, the issues in this case are complex, he has limited 7 access to the law library, he did not receive a response to prior requests for counsel, and he has 8 limited knowledge of the law. (ECF No. 5 at 1.) 9 The United States Supreme Court has ruled that district courts lack authority to require 10 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 11 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 12 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 13 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 14 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 15 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 16 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 17 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 18 common to most prisoners, such as lack of legal education and limited law library access, do not 19 establish exceptional circumstances that would warrant a request for voluntary assistance of 20 counsel. 21 In the present case, the court does not find the required exceptional circumstances. 22 Plaintiff has alleged nothing more than circumstances common to most inmates in support of his 23 motion. Additionally, at the screening stage, the court cannot ascertain plaintiff’s likelihood of 24 success on the merits. Accordingly, the motion will be denied without prejudice to its renewal at 25 a later stage of the proceedings. 26 MOTION FOR PRELIMINARY INJUNCTION 27 Plaintiff filed a notice of change of address dated April 13, 2023, notifying the court that 28 he had been transferred to California Medical Facility. (ECF No. 8.) He also requests an order 1 from the court directing prison officials to immediately provide his legal property. He states that 2 since his transfer he had been denied access to his legal records. He also requested that the court 3 order prison officials to allow him access to the law library. 4 A party requesting preliminary injunctive relief must show that “he is likely to succeed on 5 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 6 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 7 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief 8 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean 9 Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). 10 Plaintiff’s motion does not address the likelihood of success on the merits, whether he will 11 suffer irreparable harm if his motion is not granted, the balance of the equities, or whether an 12 injunction is in the public interest. Accordingly, the motion will be denied without prejudice. 13 CONCLUSION 14 For the reasons set forth above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 17 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 18 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 19 Director of the California Department of Corrections and Rehabilitation filed concurrently 20 herewith. 21 3. Plaintiff’s motion to appoint counsel (ECF No. 5) is denied without prejudice. 22 4. Plaintiff’s motion for preliminary injunction (ECF No. 8) is denied without prejudice. 23 5. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 24 6. Plaintiff is granted thirty days from the date of service of this order to file an amended 25 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 26 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 27 number assigned to this case and must be labeled “Second Amended Complaint.” 28 //// 1 7. Failure to comply with this order will result in a recommendation that this action be 2 || dismissed. 3 | Dated: October 10, 2023 4

6 BORAH BARNES 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 DB:12 11 DB/DB Prisoner Inbox/Civil Rights/cort0454.sern+31.pi 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14