(PC) Hardy v. Morris ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTIN HARDY, No. 2:13-cv-0726 JAM DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 C. DAVIS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this court are plaintiff’s motion for a “preliminary injunction / temporary 21 restraining order” and motion to appoint counsel. (See ECF Nos. 128, 130). For the reasons 22 stated below, the undersigned shall deny plaintiff’s motion to appoint counsel. In addition, it 23 shall be recommended that plaintiff’s motion for a temporary restraining order be denied. 24 I. MOTION TO APPOINT COUNSEL 25 A. Applicable Law 26 District courts lack authority to require counsel to represent indigent prisoners in section 27 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 28 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 1 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 2 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 3 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 4 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 5 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 6 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 7 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 8 legal education and limited law library access, do not establish exceptional circumstances that 9 warrant a request for voluntary assistance of counsel. 10 B. Discussion 11 In support of plaintiff’s motion for the appointment of counsel, plaintiff states that if the 12 matter proceeds to trial, he will be at a significant disadvantage. (See ECF No. 130 at 3). He also 13 points out that he has never tried a case to a jury. He further contends that given the court’s 14 finding that genuine issues of fact exist as to his Fourth Amendment claim, there is a presumption 15 that he has demonstrated a likelihood of success on the merits. (See id.). 16 As stated above, neither plaintiff’s inexperience with the law nor any perceived resulting 17 disadvantage constitute exceptional circumstances warranting the appointment of counsel. In 18 addition, a finding that a genuine issue of fact exists with respect to a claim has no bearing on 19 said claim’s potential success on the merits. Finally, the record clearly shows that to date, 20 plaintiff has had no difficulty stating his claims and presenting supporting evidence. (See, e.g., 21 ECF Nos. 1, 30, 47, 48, 67 et seq. (substantive legal documents filed by plaintiff, including, but 22 not limited to complaint and motions to compel)). Thus, having considered the Palmer factors in 23 the aggregate (see Palmer, 560 F.3d at 970 (citation omitted)), at this time, the court finds that 24 plaintiff has failed to meet his burden of demonstrating exceptional circumstances that warrant 25 the appointment of counsel. 26 II. MOTION FOR A TEMPORARY RESTRAINING ORDER 27 A. Applicable Law 28 The legal principles applicable to a request for injunctive relief are well established. To 1 prevail, the moving party must show either a likelihood of success on the merits and the 2 possibility of irreparable injury, or that serious questions are raised and the balance of hardships 3 tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 4 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th 5 Cir. 1985). The two formulations represent two points on a sliding scale with the focal point 6 being the degree of irreparable injury shown. Oakland Tribune, Inc., 762 F.2d at 1376. “Under 7 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 8 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 9 court need not reach the issue of likelihood of success on the merits. Id. 10 In cases brought by prisoners involving conditions of confinement, any preliminary 11 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 12 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 13 harm.” 18 U.S.C. § 3626(a)(2). 14 B. Discussion 15 Plaintiff requests injunctive relief “concerning arbitrary actions and conditions of 16 confinement.” (ECF No. 128 at 1). He claims that he has endured “various forms of retaliation 17 similar to the acts described in his sworn complaint” which include, strip searches without 18 reasonable suspicion; the confiscation of his property without due process; punitive cell searches 19 and the falsification of rule violation reports. (See id. at 2). He contends that the grievances, 20 citizen’s complaints and habeas petitions he has filed in an attempt to stop these reprisals have not 21 been successful. (See id.). An incident that occurred earlier this year in which he was assaulted 22 by two gang members led to charges levied against him and rehousing. As a result, some of his 23 property was stolen and he was denied access to the library. (See ECF No. 128 at 3). Plaintiff 24 contends that these facts establish that he will suffer irreparable harm should he not receive 25 declaratory and injunctive relief. (See id. at 3-4). 26 The “various forms of retaliation” plaintiff states he has endured during his confinement 27 are woefully nondescript. Specifically, they are neither narrowly drawn nor specific enough as 28 the law requires. Plaintiff fails to state how alleged strip searches without reasonable suspicion, 1 | property confiscation without due process, or the other incidents plaintiff mentions, constitute 2 | significant threats of irreparable injury or possible irreparable harm. See Oakland Tribune, Inc., 3 | 762 F.2d at 1376. Therefore, it shall be recommended that plaintiff’s motion for a temporary 4 | restraining order be denied. 5 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 6 || counsel (ECF No. 130) is DENIED. 7 IT IS FURTHER RECOMMENDED that plaintiff’s motion for a temporary restraining 8 | order (ECF No. 128) be DENIED. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 11 | being served with these findings and recommendations, any party may file written objections with 12 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 13 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 14 | served and filed within fourteen days after service of the objections. The parties are advised that 15 || failure to file objections within the specified time may waive the right to appeal the District 16 | Court’s order. Martinez v. YlIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: November 23, 2020 18 19 0 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 || DLB:13 DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS /hard0726.48.31 23 24 25 26 27 28