1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST KENDRID, No. 2:20-cv-02546 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CUDJO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff alleges defendants used excessive physical force and were deliberately indifferent 19 to plaintiff’s serious medical needs in violation of his Eighth Amendment rights. Plaintiff also 20 alleges the defendants violated his right to due process under the Fourteenth Amendment. Before 21 the court is plaintiff’s motion for the appointment of counsel and plaintiff’s motion for temporary 22 restraining order (TRO). (ECF No. 5.) 23 For the reasons set forth below, this court will deny plaintiff’s motion for the appointment 24 of counsel and recommend that plaintiff’s motion for TRO be denied. 25 MOTION FOR APPOINTMENT OF COUNSEL 26 Plaintiff requests the appointment of counsel. He claims that defendants, through RN 27 Miller and others, have gone through his legal documents to plan defenses to his claims. (ECF 28 No. 5 at 2.) Plaintiff also claims that RN Miller has ordered medical staff to take and destroy his 1 legal documents. (Id. at 1-2, 4.) Plaintiff argues that the appointment of counsel would help 2 protect his legal work from intrusion and destruction by the defendants and those acting on their 3 behalf. (Id. at 2.) 4 The United States Supreme Court has ruled that district courts lack authority to require 5 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 6 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 7 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 8 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 9 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 10 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 11 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 12 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 13 common to most prisoners, such as lack of legal education and limited law library access, do not 14 establish exceptional circumstances that would warrant a request for voluntary assistance of 15 counsel. 16 In the present case, this court does not find the required exceptional circumstances. It is 17 possible that plaintiff will succeed on the merits of his Eighth Amendment medical needs claim. 18 However, there is nothing that suggests the plaintiff unable to articulate his claims due to the 19 complexity of the legal issues involved. As such, plaintiff’s motion for the appointment of 20 counsel is denied. 21 TEMPORARY RESTRAINING ORDER 22 In his motion for TRO, plaintiff states that Registered Nurse (RN) Miller has led 23 retaliatory acts against the plaintiff. (ECF No. 5 at 1.) RN Miller is not a party to this action. 24 Plaintiff states that RN Miller supervises medical staff at California Health Care Facility (CHCF). 25 (Id.) Plaintiff alleges that defendants enlisted RN Miller to retaliate against plaintiff for filing the 26 present action. (Id. at 2.) Plaintiff requests the court issue a TRO ordering RN Miller to not 27 destroy plaintiff’s legal documents or obstruct plaintiff’s access to the courts. (Id. at 3.) 28 In the declaration filed in connection with plaintiff’s motion, plaintiff alleges the 1 following: on an unknown, date there was a “heated conversation” between RN Miller and 2 plaintiff. (Declaration of Plaintiff (ECF No. 5 at 4).) Following this conversation, RN Miller told 3 the plaintiff that he “would be handled.” (Id.) On an unspecified date a few days later, plaintiff 4 was assaulted by another inmate. (Id.) At an unknown time after this incident, RN Miller told 5 plaintiff that “this is not over and that she has more inmates she will send at [the plaintiff].” (Id.) 6 RN Miller also sent medical staff to take and destroy plaintiff’s legal documents. (Id.) 7 I. Legal Standards 8 The legal principles applicable to requests for injunctive relief, such as a temporary 9 restraining order or preliminary injunction, are well established. To prevail, the moving party 10 must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. 11 Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 12 555 U.S. 7 (2008)). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing 13 on the mere possibility of irreparable harm, such cases are “no longer controlling, or even viable.” 14 Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046,1052 (9th Cir. 2009). Under 15 Winter, the proper test requires a party to demonstrate: (1) he is likely to succeed on the merits; 16 (2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of 17 hardships tips in his favor, and (4) an injunction is in the public interest. See Stormans, 586 F.3d 18 at 1127 (citing Winter, 555 U.S. at 20). Further, an injunction against individuals not parties to 19 an action is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 20 100, 110 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from 21 litigation in which he is not designated as a party . . . .”). 22 It is typically only appropriate to grant preliminary injunctive relief where the relief 23 sought is “of the same character as that which may be granted finally” in the lawsuit. De Beers 24 Consol. Mines v. United States, 325 U.S. 212, 220 (1945). However, in certain exceptional 25 situations, the court may consider injunctive relief in order to permit the case to proceed. The All 26 Writs Act, 28 U.S.C. § 1651(a) permits the court to issue writs “necessary or appropriate in aid of 27 their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant 28 to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v. 1 Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized 2 the use of the All Writs Act in appropriate circumstances against persons or entities not a party to 3 the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977). 4 The propriety of a request for injunctive relief hinges on a significant threat of irreparable 5 injury that must be imminent in nature.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST KENDRID, No. 2:20-cv-02546 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CUDJO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff alleges defendants used excessive physical force and were deliberately indifferent 19 to plaintiff’s serious medical needs in violation of his Eighth Amendment rights. Plaintiff also 20 alleges the defendants violated his right to due process under the Fourteenth Amendment. Before 21 the court is plaintiff’s motion for the appointment of counsel and plaintiff’s motion for temporary 22 restraining order (TRO). (ECF No. 5.) 23 For the reasons set forth below, this court will deny plaintiff’s motion for the appointment 24 of counsel and recommend that plaintiff’s motion for TRO be denied. 25 MOTION FOR APPOINTMENT OF COUNSEL 26 Plaintiff requests the appointment of counsel. He claims that defendants, through RN 27 Miller and others, have gone through his legal documents to plan defenses to his claims. (ECF 28 No. 5 at 2.) Plaintiff also claims that RN Miller has ordered medical staff to take and destroy his 1 legal documents. (Id. at 1-2, 4.) Plaintiff argues that the appointment of counsel would help 2 protect his legal work from intrusion and destruction by the defendants and those acting on their 3 behalf. (Id. at 2.) 4 The United States Supreme Court has ruled that district courts lack authority to require 5 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 6 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 7 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 8 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 9 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 10 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 11 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 12 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 13 common to most prisoners, such as lack of legal education and limited law library access, do not 14 establish exceptional circumstances that would warrant a request for voluntary assistance of 15 counsel. 16 In the present case, this court does not find the required exceptional circumstances. It is 17 possible that plaintiff will succeed on the merits of his Eighth Amendment medical needs claim. 18 However, there is nothing that suggests the plaintiff unable to articulate his claims due to the 19 complexity of the legal issues involved. As such, plaintiff’s motion for the appointment of 20 counsel is denied. 21 TEMPORARY RESTRAINING ORDER 22 In his motion for TRO, plaintiff states that Registered Nurse (RN) Miller has led 23 retaliatory acts against the plaintiff. (ECF No. 5 at 1.) RN Miller is not a party to this action. 24 Plaintiff states that RN Miller supervises medical staff at California Health Care Facility (CHCF). 25 (Id.) Plaintiff alleges that defendants enlisted RN Miller to retaliate against plaintiff for filing the 26 present action. (Id. at 2.) Plaintiff requests the court issue a TRO ordering RN Miller to not 27 destroy plaintiff’s legal documents or obstruct plaintiff’s access to the courts. (Id. at 3.) 28 In the declaration filed in connection with plaintiff’s motion, plaintiff alleges the 1 following: on an unknown, date there was a “heated conversation” between RN Miller and 2 plaintiff. (Declaration of Plaintiff (ECF No. 5 at 4).) Following this conversation, RN Miller told 3 the plaintiff that he “would be handled.” (Id.) On an unspecified date a few days later, plaintiff 4 was assaulted by another inmate. (Id.) At an unknown time after this incident, RN Miller told 5 plaintiff that “this is not over and that she has more inmates she will send at [the plaintiff].” (Id.) 6 RN Miller also sent medical staff to take and destroy plaintiff’s legal documents. (Id.) 7 I. Legal Standards 8 The legal principles applicable to requests for injunctive relief, such as a temporary 9 restraining order or preliminary injunction, are well established. To prevail, the moving party 10 must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. 11 Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 12 555 U.S. 7 (2008)). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing 13 on the mere possibility of irreparable harm, such cases are “no longer controlling, or even viable.” 14 Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046,1052 (9th Cir. 2009). Under 15 Winter, the proper test requires a party to demonstrate: (1) he is likely to succeed on the merits; 16 (2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of 17 hardships tips in his favor, and (4) an injunction is in the public interest. See Stormans, 586 F.3d 18 at 1127 (citing Winter, 555 U.S. at 20). Further, an injunction against individuals not parties to 19 an action is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 20 100, 110 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from 21 litigation in which he is not designated as a party . . . .”). 22 It is typically only appropriate to grant preliminary injunctive relief where the relief 23 sought is “of the same character as that which may be granted finally” in the lawsuit. De Beers 24 Consol. Mines v. United States, 325 U.S. 212, 220 (1945). However, in certain exceptional 25 situations, the court may consider injunctive relief in order to permit the case to proceed. The All 26 Writs Act, 28 U.S.C. § 1651(a) permits the court to issue writs “necessary or appropriate in aid of 27 their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant 28 to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v. 1 Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized 2 the use of the All Writs Act in appropriate circumstances against persons or entities not a party to 3 the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977). 4 The propriety of a request for injunctive relief hinges on a significant threat of irreparable 5 injury that must be imminent in nature. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 6 674 (9th Cir. 1988); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 7 (9th Cir. 2011). “A preliminary injunction is an ‘extraordinary and drastic remedy; it is never 8 awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). 9 II. Analysis 10 The relief plaintiff requests in his motion for TRO is not related to his underlying claim in 11 this action. In his complaint, plaintiff asserts violations of the Eighth Amendment due to 12 defendants’ deliberate indifference to his medical needs and excessive use of force. Plaintiff also 13 claims defendants violated his due process rights under the Fourteenth Amendment. (ECF No. 1 14 at 4-5.) Plaintiff’s motion for TRO is based on what appears to be a claim of retaliation by RN 15 Miller that is not included in plaintiff’s complaint. (ECF No. 5 at 2.) As the injunctive relief 16 sought by the plaintiff is not based on claims asserted in the complaint, the court does not have 17 authority to grant the requested injunctive relief. Pacific Radiation Oncology, LLC v. Queen’s 18 Medical Center, 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff seeks injunctive relief 19 based on claims not pled in the complaint, the court does not have authority to issue an 20 injunction.”). 21 Moreover, the use of an injunction against a non-party such as RN Miller is heavily 22 disfavored. Zenith Radio Corp., 395 U.S. at 110. The All Writs Act permits the court to use 23 injunctive relief against persons who are not parties to the action when it is necessary for the court 24 to exercise or preserve its jurisdiction. Plum Creek Lumber Co., 608 F.2d at 1289. However, 25 plaintiff does not request that the court issue a TRO in order to allow the court to be able to 26 exercise or preserve its jurisdiction. Thus, the use of an injunction against RN Miller is heavily 27 disfavored and would not be in keeping with the purposes of the All Writs Act. 28 //// 1 The TRO plaintiff has requested is heavily disfavored as RN Miller is a third party, is not 2 | necessary for the court to exercise or maintain jurisdiction, and is not based on claims asserted in 3 | the plaintiff's complaint. As such, it is recommended that plaintiff's motion for TRO be denied. 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for the appointment of counsel (ECF No. 5) is denied; and 7 2. The Clerk of the Court is directed to randomly assign this matter to a District Judge. 8 Further, IT IS HEREBY RECOMMENDED that plaintiff's motion for a temporary 9 | restraining order (ECF No. 5) be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 12 | being served with these findings and recommendations, any party may file written objections with 13 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 14 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 15 | filed and served within fourteen days after service of the objections. The parties are advised that 16 | failure to file objections within the specified time may waive the right to appeal the District 17 | Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: March 25, 2021
20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 DLB14 28 || DLB1/prisoner/civil rights/kend2546.tro
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