(PC) Barth v. Montejo ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 SHAWN DAMON BARTH, No. 2:19-cv-1874 DB P 11 Plaintiff, 12 v. ORDER 13 EUSEBIO MONTEJO, 14 Defendant. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that defendant was deliberately indifferent to his medical needs, 18 retaliated against him, and discriminated against him. Presently before the court is plaintiff’s 19 motion to appoint counsel and notice of obstruction. (ECF No. 49.) 20 Plaintiff alleges that he was transferred to Salinas Valley State Prison (SVSP) to be 21 obstructed and to be subjected to cruel and unusual punishment. (ECF No. 49 at 1.) He further 22 states that based on his classification level he should be housed in a level 2 facility, but rather is 23 housed on a “level 3 severely violent yard.” He requests that he not be moved again until he is 24 moved to a level 1 or level 2 facility. Plaintiff also states that he is having an issue with the mail 25 room staff related to his ability to possess indigent envelopes in order to send mail. He has been 26 denied pens, paper, law library access, and his PLU states has not yet been granted. He believes 27 that he has not received all his mail and sometimes his food smells like chemicals. (ECF No. 49 28 at 3.) 1 It is well settled that prisoners have no constitutional right to placement in any particular 2 prison, to any particular security classification, or to any particular housing assignment. See Olim 3 v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976); 4 Montayne v. Haymes, 427 U.S. 236, 242 (1976). Accordingly, the court cannot interfere with 5 decisions related to plaintiff’s security classification or housing assignment. To the extent 6 plaintiff believes his transfer was in retaliation for filing this case he may file a separate civil 7 rights action after exhausting administrative remedies. 8 Additionally, the court cannot order prison officials at SVSP to give him indigent 9 envelopes, mail, legal materials, or different food. Such relief would be inappropriate because it 10 would be directed toward individuals who are not parties in this action, Zenith Radio Corp. v. 11 Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one is not bound by a 12 judgment . . . resulting from litigation in which he is not designated as a party . . . .”), and the 13 relief sought is unrelated to plaintiff’s underlying claims in this action. Pacific Radiation 14 Oncology, LLC v. Queen’s Medical Center, 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff 15 seeks injunctive relief based on claims not pled in the complaint, the court does not have authority 16 to issue an injunction.”). 17 Plaintiff also states, “I think that an attorney now would be good.” (ECF No. 49 at 3.) 18 However, the motion does not contain any other arguments in support of this request for counsel. 19 The United States Supreme Court has ruled that district courts lack authority to require counsel to 20 represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 21 298 (1989). In certain exceptional circumstances, the district court may request the voluntary 22 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 23 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 27 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 | establish exceptional circumstances that would warrant a request for voluntary assistance of 2 | counsel. In the present case, the court does not find the required exceptional circumstances. 3 | Plaintiff has not shown that he requires assistance in articulating his claims at this time. 4 | Therefore, the court will deny the motion to appoint counsel without prejudice to its renewal at a 5 | later stage of the proceedings. 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 7 | counsel (ECF No. 49) is denied. 8 | Dated: March 16, 2021 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 DB:12 17 || □□□□□□□□□□□□□□□□□□□□□□□□□□ Rights/bart1874.31(4) 18 19 20 21 22 23 24 25 26 27 28