(PC) Ray v. Petras ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY D. RAY, No. 2:19-cv-1865-KJM-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ONGNEN PETRAS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Currently before the court are plaintiff’s August 19, 2020 motion for appointment 19 of counsel (ECF No. 29) and his August 10, 2020 motion for a preliminary injunction (ECF No. 20 25). Both motions must be denied. 21 I. Motion for Counsel 22 As the court’s prior orders informed plaintiff (ECF Nos. 20 and 27), district courts lack 23 authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United 24 States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 25 request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); 26 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 27 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court 28 must consider the likelihood of success on the merits as well as the ability of the plaintiff to 1 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 2 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court again finds 3 there are no exceptional circumstances in this case. 4 II. Motion for Preliminary Injunction 5 Plaintiff has filed a motion for an injunction that, in its entirety, states: “Plaintiff ask Court 6 to grant an injunction to remove Ongnen Petras for assignment as Plaintiff’s Personal Care 7 Provider, due to conflict of interest. Being that Ongnen Petras is Plaintiff’s defendant.” ECF No. 8 25. 9 A preliminary injunction will not issue unless necessary to prevent threatened injury that 10 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 11 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 12 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 13 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 14 326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must 15 demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 16 in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 17 injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 18 2009) (citing Winter v. NRDC, Inc., 555 U.S. 7 (2008)). The U.S. Court of Appeals for the Ninth 19 Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions—that 20 is, balancing the elements of the preliminary injunction test, so that a stronger showing of one 21 element may offset a weaker showing of another—survives Winter and continues to be valid. 22 Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, 23 ‘serious questions going to the merits,’ and a hardship balance that tips sharply toward the 24 plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test 25 are also met.” Id. In cases brought by prisoners involving conditions of confinement, any 26 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 27 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 28 correct the harm.” 18 U.S.C. § 3626(a)(2). wOAOe 2 hOUVV LOVING VEE MVOC OO PI ee PAY VM VIG 1 Plaintiff’ s exceedingly brief motion does not make any showing regarding the merits, 2 || irreparable harm to plaintiff, or a balance of hardships favoring plaintiff. The court cannot 3 || assume, absent some showing, that, due to this lawsuit, defendant Petras is engaging in some 4 || behavior in his capacity as plaintiffs doctor that harms plaintiff. Plaintiff has also failed to 5 || apprise the court of whether he has asked prison officials to provide him with a different doctor. 6 || Accordingly, the motion for a preliminary injunction must be denied. 7 II. Order and Recommendation 8 Accordingly, it is hereby ORDERED that plaintiffs August 19, 2020 motion for 9 | appointment of counsel (ECF No. 29) is DENIED. Further, it is RECOMMENDED that 10 | plaintiff’s August 10, 2020 motion for an injunction (ECF No. 25) be denied. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: August 27, 2020. 19 tid, PDEA 20 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28