Washington v. Dillard et al, No. 1:2023cv00431 - Document 9 (E.D. Cal. 2023)
Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Motion for Emergency Injunction and Motion for Temporary Restraining Order; ORDER DENYING 5 Plaintiff's Motion to Appoint Counsel, without Prejudice; ORDER Directing Clerk of Court to Randomly Assign a District Judge to this Action, signed by Magistrate Judge Stanley A. Boone on 07/18/2023. Objections to F&R due within Twenty-One days. (Maldonado, C)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. 1:23-cv-00431-SAB PERRY KENJI WASHINGTON, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL, WITHOUT PREJUDICE Plaintiff, v. ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION CURTIS DILLARD, et al., Defendants. 16 FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTION AND MOTION FOR TEMPORARY RESTRAINING ORDER 17 18 (ECF Nos. 5, 6) 19 OBJECTIONS DUE WITHIN TWENTYONE DAYS 20 21 22 Plaintiff Perry Washington (“Plaintiff”), proceeding pro se and in forma pauperis, brings 23 this civil action against Curtis Dillard and Ebony. (ECF No. 1.) On June 30, 2023, the Court 24 screened Plaintiff’s complaint, determined Plaintiff failed to allege facts sufficient to state any 25 claim, and directed Plaintiff to file an amended complaint. (ECF No. 4.) The deadline to file an 26 amended complaint is July 31, 2023. (See id. at 9.) 27 Currently before the Court are Plaintiff’s motions to appoint counsel (ECF No. 5) and for 28 a temporary restraining order (ECF No. 6), both filed on July 14, 2023. For the following 1 1 reasons, Plaintiff’s motion to appoint counsel shall be denied at this time, and the Court shall 2 recommend the motion for a temporary restraining order be denied. 3 I. 4 MOTION TO APPOINT COUNSEL 5 Plaintiff appears to seek appointment of counsel on the basis that he has allegedly suffered 6 mental injury resulting from a physical attack by gang members during an armed robbery. (ECF 7 No. 5.) Plaintiff alleges the police will not investigate the incident and he currently is seeking 8 refuge on the streets, which the Court construes as an argument that Plaintiff is unable to afford 9 counsel.1 10 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 11 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 12 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 13 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 14 circumstances the court may request the voluntary assistance of counsel pursuant to section 15 1915(e)(1). Rand, 113 F.3d at 1525. 16 Without a reasonable method of securing and compensating counsel, the court will seek 17 volunteer counsel only in the most serious and exceptional cases. In determining whether 18 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 19 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 20 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 21 The Court is not unsympathetic to Plaintiff’s circumstances; however, in the present case, 22 the Court does not find the required exceptional circumstances. While the Court recognizes that 23 Plaintiff is at a disadvantage due to his pro se status and lack of legal sophistication, the test is 24 not whether Plaintiff would benefit from the appointment of counsel. 25 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further 26 facts during litigation and a pro se litigant will seldom be in a position to investigate easily the See Wilborn v. 27 1 28 Plaintiff also alludes to a motion for witness protection (see id. at 1); however, no such motion is pending before this Court. 2 1 facts necessary to support the case.”) The test is whether exceptional circumstances exist and 2 here, they do not. Furthermore, the Court cannot at this juncture find Plaintiff has a likelihood of 3 success on the merits, as the Court recently screened Plaintiff’s original complaint and 4 determined it did not state a cognizable claim (ECF No. 4), and Plaintiff has not yet filed any 5 amended complaint. Finally, the record demonstrates that Plaintiff is able to adequately litigate 6 this action, and circumstances common to most pro se plaintiffs, such as lack of legal education 7 and indigency, do not establish exceptional circumstances that would warrant a request for 8 voluntary assistance of counsel. Accordingly, Plaintiff’s motion for the appointment of counsel 9 is denied, without prejudice. 10 II. 11 MOTION FOR TEMPORARY RESTRAINING ORDER 12 A. Legal Standard 13 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 14 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 15 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 16 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 17 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 18 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 19 omitted). 20 Federal courts are courts of limited jurisdiction and in considering a request for 21 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 22 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 23 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 24 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 25 power to hear the matter in question. Id. 26 Further, the pendency of this action does not give the Court jurisdiction over unserved 27 defendants or unnamed parties in general. See Summers v. Earth Island Inst., 555 U.S. 488, 491– 28 93 (2009); Mayfield v. U.S., 599 F.3d 964, 969 (9th Cir. 2010). Rather, the Court’s jurisdiction is 3 1 limited to the parties in this action and to the viable legal claims upon which this action is 2 proceeding. Summers, 555 U.S. at 491–93; Mayfield, 599 F.3d at 969. 3 B. Analysis 4 Plaintiff seeks a restraining order against named Defendant Curtis Dillard, as well as 5 several nonparties (“all family members, gang affiliates and ‘friends’ ” of Mr. Dillard). (ECF No. 6 6 at 1.) The request is premised on allegations that the “caretaker” of Mr. Dillard’s mother’s, 7 “Charles,” assaulted Plaintiff, tried to kill him in Vallejo, and stole his money. (See id. at 1, 2.) 8 Plaintiff alleges when he was attacked by Charles, there were other people with Charles who 9 claimed to be retaliating “for [the] Dillard Family.” (Id. at 1.) Plaintiff alleges that he almost 10 died: as a result of the attack, he has a brain injury, heart failure, and is handicapped for life. (Id.) 11 Plaintiff’s motion, therefore, appears to seek an order restraining Charles and other unidentified 12 individuals from inflicting further harm. (Id.) In addition, Plaintiff appears to seek an order 13 placing him in witness protection. (Id.) 14 The Court concludes Plaintiff has not met the requirements for the injunctive relief he 15 seeks in this motion. As an initial matter, the Court notes it is required to screen complaints 16 brought by litigants proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, 17 or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a 18 claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is 19 immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii). Here, the Court has screened Plaintiff’s 20 complaint and determined it fails to state any cognizable claim. (ECF No. 4.) Plaintiff was 21 granted leave to file an amended complaint; however, no amended complaint has yet been filed. 22 The Court therefore cannot conclude at this time that Plaintiff has shown a likelihood of success 23 on the merits. 24 In addition, no defendant has been ordered served, and no defendant has yet made an 25 appearance. 26 identified and not) who have not been named defendants in this action. Thus, the Court at this 27 time lacks personal jurisdiction over Defendants or any other nonparty individual. 28 Moreover, Plaintiff appears to seek injunctive relief against individuals (both Furthermore, the Court concludes Plaintiff has not provided sufficient information to 4 1 show he is likely to suffer irreparable harm in the absence of a temporary restraining order and/or 2 preliminary injunction. While the Court is not unsympathetic to Plaintiff’s allegations of being 3 physically attacked, it cannot conclude the risk of further attacks or harm is imminent. That is, 4 Plaintiff states he was attacked by unidentified individuals and a nonparty to this action on behalf 5 of Defendant Dillard’s family, in retaliation for some unknown action. It is not clear why 6 Plaintiff was attacked or whether he is in danger of being attacked again. Indeed, the Court notes 7 Plaintiff appears to refer to this same attack in his motion to appoint counsel as an armed robbery 8 incident. As such, Plaintiff fails to show that irreparable harm is likely to occur in the absence of 9 preliminary injunctive relief. 10 Finally, Plaintiff has not presented any evidence that the balance of equities is in his favor 11 or that preliminary injunctive relief would be in the public’s interest. 12 recommended that Plaintiff’s motion for a temporary restraining order be denied. 13 III. 14 ORDER AND RECOMMENDATIONS Accordingly, it is 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion to appoint counsel (ECF No. 5) is DENIED; and 17 2. The Clerk of the Court shall randomly assign a District Judge to this action. 18 Further, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a temporary 19 restraining order (ECF No. 6) be DENIED. 20 These findings and recommendations are submitted to the district judge assigned to this 21 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty- 22 one (21) days of service of this recommendation, Plaintiff may file written objections to these 23 findings and recommendations with the Court. Such a document should be captioned “Objections 24 to Magistrate Judge’s Findings and Recommendations.” The district judge will review the 25 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 26 /// 27 /// 28 /// 5 1 Plaintiff is advised that failure to file objections within the specified time may result in the 2 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: July 18, 2023 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
