Kimbro v. Chen et al
Filing
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ORDER Denying Motion for Appointment of Counsel and Denying Request for Injunctive Relief 3 , signed by Magistrate Judge Gerald B. Cohn on 6/16/11. (Verduzco, M)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD KIMBRO,
Plaintiff,
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CHEN, et al.,
Defendants.
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(ECF No. 3)
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ORDER
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
DENYING REQUEST FOR INJUNCTIVE
RELIEF
v.
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1:11-cv-00957-GBC (PC)
I.
MOTION TO APPOINT COUNSEL
On June 13, 2011, Plaintiff filed a motion seeking the appointment of counsel.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney
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to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States
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District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816
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(1989). However, in certain exceptional circumstances the court may request the
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voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at
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1525.
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Without a reasonable method of securing and compensating counsel, the court
will seek volunteer counsel only in the most serious and exceptional cases. In
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determining whether “exceptional circumstances exist, the district court must evaluate
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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate
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his claims pro se in light of the complexity of the legal issues involved.” Id. (internal
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quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional
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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that
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he has made serious allegations which, if proved, would entitle him to relief, his case is
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not exceptional. This Court is faced with similar cases almost daily. Further, at this
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early stage in the proceedings, the Court cannot make a determination that Plaintiff is
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likely to succeed on the merits, and based on a review of the record in this case, the
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Court does not find that Plaintiff cannot adequately articulate his claims. Id.
Therefore, Plaintiff’s motion for the appointment of counsel is DENIED, without
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prejudice.
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II.
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REQUEST FOR INJUNCTIVE RELIEF
Also contained in Plaintiff’s Motion is a request for injunctive relief. Plaintiff
states that he is ill and not being treated.
Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,
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never awarded as of right.” Winter v. Natural Res. Defense Council, 129 S.Ct. 365, 376
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(2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to
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succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is
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in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
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1052 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374). The standard for a permanent
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injunction is essentially the same as for a preliminary injunction, with the exception that
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the plaintiff must show actual success, rather than a likelihood of success. See Amoco
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Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). However, the Ninth
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Circuit has recently revived the “serious questions” sliding scale test, and ruled that a
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preliminary injunction may be appropriate when a plaintiff demonstrates serious
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questions going to the merits and the balance of hardships tips sharply in plaintiff’s
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favor. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1052-53 (9th Cir. 2010).
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In cases brought by prisoners involving conditions of confinement, the Prison
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Relief Reform Act (PLRA) requires that any preliminary injunction “must be narrowly
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drawn, extend no further than necessary to correct the harm the court finds requires
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preliminary relief, and be the least intrusive means necessary to correct the harm.” 18
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U.S.C. § 3626(a)(2). Moreover, where, as here, “a plaintiff seeks a mandatory
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preliminary injunction that goes beyond maintaining the status quo pendente lite, ‘courts
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should be extremely cautious’ about issuing a preliminary injunction and should not
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grant such relief unless the facts and law clearly favor the plaintiff.” Committee of
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Central American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir. 1986) (quoting
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Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984)).
The Court finds that Plaintiff has not established that he is likely to succeed on
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the merits in this case. In his Motion, he does not refer to his complaint or statement of
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facts at all. He makes one statement that he is sick and needs to be treated and in no
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way connects it to his action. Plaintiff has also failed to show that he is likely to suffer
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irreparable harm in the absence of an injunction. He does not state that he is suffering
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any harm or is likely to suffer harm. Finally, Plaintiff does not address the balance of
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equities or the public interest, both of which are prerequisites to the issuance of
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injunctive relief. Overall, the Court finds that Plaintiff has failed to meet his burden with
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respect to the issuance of injunctive relief.
The Court recognizes that Plaintiff’s Complaint, which is yet to be screened,
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requests similar injunctive relief. In the event the Court finds that the Complaint states
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a cognizable claim, the Court will revisit Plaintiff’s request for injunctive relief outlined in
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the Complaint.
Therefore, Plaintiff’s request for injunctive relief is DENIED, without prejudice.
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//
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///
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III.
CONCLUSION AND ORDER
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Based on the foregoing, the Court HEREBY ORDERS that:
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and
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Plaintiff’s Motion for Appointment of Counsel is DENIED without prejudice;
Plaintiff’s request for injunctive relief is DENIED without prejudice.
IT IS SO ORDERED.
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Dated:
1j0bbc
June 16, 2011
UNITED STATES MAGISTRATE JUDGE
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