(PC) McElroy v. Gomez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN MCELROY, ) Case No.: 1:20-cv-00658-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) REGARDING PLAINTIFF’S PETITION FOR WRIT OF MANDAMUS 14 GOMEZ, et al., ) ) [ECF No. 25] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Latwahn McElroy is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion entitled “Notice & Federal Stipulative Writ of 21 Mandamus and/or Petition for Administrative Review; Conjoined Opposition and/or Objection to 22 Magistrate’s Decision; Plaintiff Seeking Urgent Reconsideration, Otherwise Alternative to Proceed 23 with Exception Granting Assistance of Counsel & Exhibit Supports,” filed on July 31, 2020. 24 Plaintiff’s filing is very difficult to decipher as it is incoherent and rambling. However, the Court will 25 address the request as best if can decipher below. 26 /// 27 /// 28 /// 1 I. 2 RELEVANT BACKGROUND 3 Plaintiff filed the instant action on May 11, 2020. On May 28, 2020, the Court found that 4 Plaintiff suffered three or more strikes under 28 U.S.C. § 1915(g), but granted in forma pauperis status 5 as Plaintiff demonstrated that he was in imminent danger of physical harm at the time of filing. (ECF 6 No. 5.) 7 On June 11, 2020, the Court screened Plaintiff’s complaint, found that no cognizable claims 8 were stated, and granted thirty days to file an amended complaint. (ECF No. 8.) Plaintiff failed to file 9 an amended complaint within the thirty day period. Accordingly, on July 20, 2020, the Court directed 10 Plaintiff to show cause why the action should not be dismissed. (ECF No. 20.) 11 On July 31, 2020, Plaintiff filed a response to the order to show cause, and the instant motion 12 for petition for writ of mandamus. (ECF Nos. 24, 25.) 13 II. 14 DISCUSSION 15 A. Writ of Mandamus 16 “The writ of mandamus is a ‘drastic and extraordinary’ remedy ‘reserved for really 17 extraordinary causes.’ ” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte Fahey, 18 332 U.S. 258, 259–60 (1947)). See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 19 289 (1988) (“This Court repeatedly has observed that the writ of mandamus is an extraordinary 20 remedy, to be reserved for extraordinary situations.”). 21 The federal mandamus statute provides: “The district courts shall have original jurisdiction of 22 any action in the nature of mandamus to compel an officer or employee of the United States or any 23 agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 (emphasis added). “The 24 federal courts are without power to issue writs of mandamus to direct state courts or their judicial 25 officers in the performance of their duties ....” Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966). 26 See also Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988) (“The federal courts have no general power 27 to compel action by state officials ....”). The extraordinary remedy of mandamus is not available in the 28 instant case because the named Respondent is not an officer, employee, or agency of the United States, 1 and the Court lacks jurisdiction to compel action by California state officials. Accordingly, the 2 petition for writ of mandamus should be dismissed for lack of jurisdiction. Further, the Court finds that 3 Petitioner is not entitled to emergency injunctive relief. See Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 4 (9th Cir. 1983) (“A federal court may issue an injunction [only] if it has personal jurisdiction over the 5 parties and subject matter jurisdiction over the claim[.]”). 6 B. Request for Preliminary Injunction 7 To the extent Plaintiff seeks immediate medical treatment, his request must be denied. 8 The purpose of a temporary restraining order or a preliminary injunction is to preserve the 9 status quo if the balance of equities so heavily favors the moving party that justice requires the court to 10 intervene to secure the positions until the merits of the action are ultimately determined. University of 11 Texas v. Camenisch, 451 U.S. 390, 395 (1981). “A plaintiff seeking a preliminary injunction [or 12 temporary restraining order] must establish that he is likely to succeed on the merits, that he is likely 13 to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 14 favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 15 Inc., 555 U.S. 7, 20 (2008). 16 “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be 17 granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 18 Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations omitted) (emphasis in original). A party 19 seeking a temporary restraining order or preliminary injunction simply cannot prevail when that motion 20 is unsupported by evidence. 21 Federal courts are courts of limited jurisdiction and in considering a request for preliminary 22 injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before it an 23 actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge 24 Christian Coll. V. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). If 25 the Court does not have an actual case or controversy before it, it has no power to hear the matter in 26 question. Id. Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the 27 Prison Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, 28 extends no further than necessary to correct the violation of the Federal right, and is the least intrusive 1 means necessary to correct the violation of the Federal right.” 2 As an initial matter, there is no operative complaint before the Court that has stated a cognizable 3 claim for relief.1 Accordingly, Plaintiff has not and cannot demonstrate a likelihood of success on the 4 merits. Further, although Plaintiff contends that he is in need of medical treatment, he has not provided 5 sufficient evidence to support his contention beyond his own conclusory statements. Herb Reed Enters., 6 LLC v. Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1251 (9th Cir. 2013) (“Those seeking injunctive relief 7 must proffer evidence sufficient to establish a likelihood of irreparable harm.”). Instead, the records 8 that he provides demonstrate that he has been provided dental treatment and various medical devices. 9 (ECF No. 25.) In addition, Plaintiff’s request for a preliminary injunction is also premature insofar as 10 no defendant has been served. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 11 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the 12 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 13 persons not before the court.”). Accordingly, Plaintiff’s motion for a preliminary injunction should be 14 denied. 15 C. Request for Appointment of Counsel 16 To the extent Plaintiff seeks appointment of counsel, his request must be denied. As Plaintiff 17 was previously advised, there is no constitutional right to appointed counsel in this action, Rand v. 18 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent 19 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 20 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 21 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 22 1525. 23 24 25 1 To the extent Plaintiff is attempting to challenge the Court’s June 11, 2020, screening order, Plaintiff’s remedy at this juncture is to file an amended complaint, which is presently due on or before September 7, 2020. (ECF No. 26.) Further, 26 the mere fact that Plaintiff was grant leave to proceed in forma pauperis, despite having suffered three or more strikes, does not mean he has sufficiently stated a cognizable claim for relief. Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 27 2007) (the three-strikes rule is a screening device that does not judge the merits of prisoners' lawsuits). 28 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 7 of success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 9 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Even if it assumed that Plaintiff is not 10 well versed in the law and that he has made serious allegations which, if proved, would entitle him to 11 relief, his case is not exceptional. The Court is faced with similar cases almost daily. While the Court 12 recognizes that Plaintiff is at a disadvantage due to his pro se status and his incarceration, the test is 13 not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 14 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation 15 and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the 16 case.”) Circumstances common to most prisoners, such as lack of legal education and limited law 17 library access, do not establish exceptional circumstances that would warrant a request for voluntary 18 assistance of counsel. In the present case, the Court has screened Plaintiff’s complaint and found that 19 he failed to state a cognizable claim for relief. Therefore, the Court cannot find that there is a 20 likelihood of success on the merits. Accordingly, Plaintiff’s motion for appointment of counsel 21 should be DENIED without prejudice. 22 III. 23 RECOMMENDATIONS 24 Based on the foregoing, it is HEREBY RECOMMENDED that: 25 1. Plaintiff’s petition for writ of mandamus be denied; 26 2. Plaintiff’s request for a preliminary injunction be denied; and 27 3. Plaintiff’s request for appointment of counsel be denied, without prejudice. 28 /// wOASe UVM YOU IN IN ESPADA OV VIN 1 These Findings and Recommendations will be submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 3 || after being served with these Findings and Recommendations, Plaintiff may file written objections 4 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 6 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 7 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 || IT IS SO ORDERED. A (Fe 10 |! pated: _ August 12, 2020 OF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28