(PC) Brown v. Reilly ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, No. 2:20-cv-1709 WBS AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 A. REILLY, et al. , 15 Defendants. 16 17 Plaintiff, a state prisoner seeking relief under 42 U.S.C. § 1983, filed a motion for a 18 preliminary injunction (ECF No. 73) less than three weeks after his last four such motion were 19 denied (ECF No. 72). Plaintiff has also filed a motion for appointment of counsel. ECF No. 74. 20 I. Motion for Preliminary Injunction 21 Plaintiff alleges that he is scheduled to be transferred to CSP-Sacramento and that his life 22 will be in danger there because it is where defendants work. He seeks an order preventing this 23 transfer. ECF No. 73. 24 “A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to 25 succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of 26 preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is 27 in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations 28 omitted). If the moving party cannot show a likelihood of success on the merits, “‘serious 1 questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff 2 can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a 3 likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild 4 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 5 Cir. 2011). 6 Plaintiff is not currently housed at CSP-Sacramento, and though he alleges that he will be 7 transferred back to CSP-Sacramento in thirty to sixty days, he provides no documentation to 8 support this allegation. Plaintiff has made similar, unsupported allegations that he was scheduled 9 to be transferred to CSP-Sacramento in his previous motions for preliminary injunction, the first 10 of which was filed nearly one year ago, and he has yet to be transferred back. See ECF No. 32 at 11 3, 5 (claiming transfer in both six months and ninety days); ECF No. 40 at 4 (claiming transfer 12 within four months); ECF No. 54 at 3 (claiming transfer within twenty days). Furthermore, in 13 response to plaintiff’s previous motions, defendants provided evidence that there were no plans to 14 transfer plaintiff at that time. ECF No. 66. Because plaintiff does not provide any support for his 15 claims of an imminent transfer, he fails to demonstrate a reasonable expectation of being returned 16 to that facility and the motion should be denied. See Johnson v. Moore, 948 F.2d 517, 519 (9th 17 Cir. 1991) (per curiam) (claims for injunctive relief related to conditions of confinement were 18 moot where prisoner was transferred to another facility and “demonstrated no reasonable 19 expectation of returning to [the original facility].” (citing Darring v. Kincheloe, 783 F.2d 874, 876 20 (9th Cir. 1986))). 21 Furthermore, petitioner makes only unsupported, conclusory assertions that he will be in 22 danger from defendants if he is transferred, which is not sufficient to merit relief. See Caribbean 23 Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not 24 constitute irreparable injury sufficient to warrant granting a preliminary injunction.” (citing 25 Goldie’s Bookstore, Inc. v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984))). Accordingly, even 26 if plaintiff provided evidence of imminent transfer he would not be entitled to preliminary 27 injunctive relief. 28 For these reasons, the motion should be denied. 1 II. Motion for Counsel 2 Plaintiff has also requested the appointment of counsel. ECF No. 74. The United States 3 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 4 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 5 certain exceptional circumstances, the district court may request the voluntary assistance of 6 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 7 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 8 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 9 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 10 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 11 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 12 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 13 most prisoners, such as lack of legal education and limited law library access, do not establish 14 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 15 Plaintiff requests appointment of counsel on the grounds that he currently housed in a 16 crisis bed, is heavily medicated, has no access to the law library, and will be without his property 17 for at least seven months. ECF No. 74. However, plaintiff provides no documentation to support 18 his claim that it will be at least seven months before his property is returned or identify why he 19 needs access to the law library at this time. Defendants do not currently have any motions 20 pending and plaintiff has not identified any matters that he is working on that require library 21 access. Furthermore, while plaintiff claims that he is not allowed to physically go to the law 22 library, he does not address whether he is also unable to request legal materials through the 23 paging system. 24 The claim that plaintiff suffers from mental health conditions and side effects from his 25 medication, without more, is also not enough to establish exceptional circumstances warranting 26 appointment of counsel. If plaintiff chooses to file another motion for appointment of counsel at 27 a later stage of the case, he should identify what conditions he suffers from, explain how his 28 conditions or the medication he is taking prevent him from proceeding without assistance, and 1 || provide medical documentation that supports his claims regarding the effect his mental health 2 || conditions or medication have on his ability to proceed without assistance. 3 Finally, plaintiff has not demonstrated that he has a likelihood of success on the merits. 4 || To date, he has demonstrated that he is capable of articulating his claims without assistance. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for appointment of 7 || counsel (ECF No. 74) is DENIED. 8 IT IS FURTHER RECOMMENDED that plaintiff's motion for a preliminary injunction 9 || (ECF No. 73) be DENIED. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be served and filed within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: October 14, 2022 * 19 ththienr—Chnp—e_ ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28