(PC) Sierra v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO SIERRA, No. 2:22-cv-0488 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions for injunctive relief and 19 appointment of counsel. (ECF No. 21.) 20 For the reasons stated herein, plaintiff’s motions are denied without prejudice. 21 Background 22 At present, no operative pleading is on file. Plaintiff’s amended complaint was dismissed 23 on April 21, 2023, and his second amended complaint is due on or before May 21, 2023. Plaintiff 24 named multiple defendants employed at Mule Creek State Prison (“MCSP”), but because of the 25 nature of his pleading addressed in the April 21, 2023 screening order, the court is unable to 26 determine whether plaintiff can state a cognizable civil rights claim. (ECF No. 20.) 27 //// 28 //// 1 Plaintiff’s Motion 2 Plaintiff asks the court to direct the “superintendent” of MCSP to “stop all imminent harm 3 against plaintiff directly or through any other parties.” (ECF No. 21 at 1.) Plaintiff seeks 4 “restraints on abuse of discretion and appropriate positive order in peaceful program with regards 5 to rehabilitation.” (Id.) Plaintiff claims he has been denied calls and messages for at least two 6 months and would have liked to have called his family. Plaintiff asks the court to “stop any and 7 all harmful actions now/future which . . . violates law.” (ECF No. 21 at 2.) 8 Governing Standards 9 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 10 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citations omitted); Epona v. 11 Cty. of Ventura, 876 F.3d 1214, 1227 (9th Cir. 2017). The party seeking a preliminary injunction 12 must establish that “he is likely to succeed on the merits, that he is likely to suffer irreparable 13 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 14 injunction is in the public interest.” Winter, 555 U.S. at 20 (citations omitted); see also American 15 Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 16 Winter, 555 U.S. at 20); Fed. R. Civ. P. 65 (governing both temporary restraining orders and 17 preliminary injunctions). An injunction may only be awarded upon a clear showing that the 18 plaintiff is entitled to relief. See Winter, 555 U.S. at 22 (citation omitted). Also, an injunction 19 against individuals not parties to an action is strongly disfavored. See Zenith Radio Corp. v. 20 Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one is not bound by a 21 judgment . . . resulting from litigation in which he is not designated as a party. . . . ”). 22 Further, a “court’s equitable power lies only over the merits of the case or controversy 23 before it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the 24 court does not have the authority to issue an injunction.” Pacific Radiation Oncology, LLC v. 25 Queen’s Medical Center, 810 F.3d 631, 633 (9th Cir. 2015). Significantly, a party moving for a 26 preliminary injunction must necessarily establish a “relationship between the injury claimed in 27 the motion for injunctive relief and the claims set forth in the underlying complaint itself.” Id. at 28 636. 1 Discussion 2 Here, there is no operative pleading on file to support a claim for injunctive relief at this 3 time, and therefore the court is unable to determine whether plaintiff would be likely to succeed 4 on the merits of any claim. Plaintiff’s request is insufficient, procedurally, to support a request 5 for injunctive relief at this time. In addition, the record is insufficient to demonstrate an order is 6 required under other legal authorities. 7 To the extent plaintiff seeks injunctive relief as to his inability to call or message his 8 family, plaintiff also fails to demonstrate that such inability poses imminent harm or is related to 9 claims he intends to raise in this action. Indeed, plaintiff failed to address all of the elements 10 required under Winter. 11 Further, no defendants have yet appeared in this action, and the court does not have 12 jurisdiction to order injunctive relief which would require directing parties not before the Court to 13 take action. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th 14 Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the parties 15 and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 16 persons not before the court.”). 17 For all of these reasons, plaintiff’s motion for injunctive relief is denied without prejudice. 18 Motion for Counsel 19 Plaintiff seeks appointment of counsel. District courts lack authority to require counsel to 20 represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 21 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily 22 represent such a plaintiff. See 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). When 24 determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 25 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 26 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 27 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 28 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 1 | common to most prisoners, such as lack of legal education and limited law library access, do not 2 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 3 The court is required to evaluate the likelihood of success on the merits, but because no 4 || operative complaint is yet on file, the court cannot determine the merits of any of plaintiff's 5 | claims. Having considered the factors under Palmer, the court finds that plaintiff failed to meet 6 || his burden of demonstrating exceptional circumstances warranting the appointment of counsel at 7 || this time. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiffs motion for injunctive relief (ECF No. 21) is denied without prejudice; and 10 2. Plaintiffs motion for appointment of counsel (ECF No. 21) is denied without 11 || prejudice. 12 || Dated: May 2, 2023 i Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 1S || siero4s8.pi+ 16 17 18 19 20 21 22 23 24 25 26 27 28