(PC) Johnson v. Ruiz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PAUL SAMUEL JOHNSON, No. 2:20-cv-291-JAM-EFB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 RUIZ, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. On April 10, 2020, the court determined that the operative complaint was 18 deficient and could not proceed as currently articulated. ECF No. 12. The court noted that 19 plaintiff’s lengthy complaint contained a multitude of unrelated claims pertaining to medical care, 20 interference with prison mail, his alleged entitlement to resentencing, denial of a kosher diet, and 21 instances of sexual assault. Id. at 3. Plaintiff was given leave to amend. Id. at 3-4. Then, on 22 April 17, 2020 and without filing an amended complaint, plaintiff filed a petition for release from 23 prison due to the coronavirus pandemic. ECF No. 16. The court construed that petition as a 24 motion for preliminary injunction and recommended it be denied due to the absence of an 25 operative complaint. ECF No. 19 at 2. Those recommendations are pending before the district 26 judge. 27 Now, still having not filed a new complaint, plaintiff has filed five more motions for 28 preliminary injunction, along with “new evidence,” again seeking release from prison. ECF Nos. 1 22, 25, 26, 2, 29, 308. The motions also seek appointment of counsel. Id.; see also ECF No. 31. 2 The motions should, like their predecessor, be denied. 3 Legal Standard 4 A preliminary injunction represents the exercise of a far-reaching power not to be 5 indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 6 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must demonstrate 7 “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 8 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 9 is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing 10 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has also held 11 that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing the 12 elements of the preliminary injunction test, so that a stronger showing of one element may offset 13 a weaker showing of another—survives Winter and continues to be valid. Alliance for the Wild 14 Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions 15 going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support 16 issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. 17 Analysis 18 The rationale articulated by the court in its previous recommendation apply equally here– 19 the absence of an operative complaint by which to judge the likelihood of plaintiff’s ultimate 20 success on the merits – and militates in favor of denying the immediate motions for preliminary 21 injunction. See Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1134 (11th Cir. 2005) 22 (“[I]njunctive relief must relate in some fashion to the relief requested in the complaint.”); see 23 also Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002) (“When no complaint is filed, the 24 court lacks jurisdiction to entertain the plaintiff's petition for injunctive relief.”). Further, the 25 court has since issued a recommendation to dismiss this action for the reasons stated in the April 26 10, 2020 screening order (ECF No. 12) because plaintiff has opted not to amend his complaint. 27 ECF No. 27. 28 ///// wOAOe COUN VV EYL VAIN EP MUO VO PI VO OTe PAY VM VI 1 Request for Appointment of Counsel 2 District courts lack authority to require counsel to represent indigent prisoners in section 3 || 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 4 | circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 5 || 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 6 | Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 7 || circumstances” exist, the court must consider the likelihood of success on the merits as well as the 8 || ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 9 | involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 10 | the court finds there are no exceptional circumstances in this case. 11 Conclusion 12 Accordingly, it is hereby ORDERED that plaintiffs request for appointment of counsel 13 || (ECF No. 31) is DENIED. 14 For the foregoing reasons, it is hereby RECOMMENDED that plaintiffs motions for 15 || injunctive relief (ECF Nos. 22, 25, 26, 28, 29, 30) be DENIED. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 | DATED: August 17, 2020. tid, PDEA 25 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 27 28