(PC) Putney v. Fox et al, No. 2:2017cv01507 - Document 31 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 7/13/2018 DENYING 30 Request for Copies; DENYING 24 and 30 Motions for Appointment of Counsel; ORDERING Plaintiff to file his amended pleading by 8/13/2018; and RECOMMENDING 24 Motion for Injunctive Relief be denied. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(PC) Putney v. Fox et al Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EARL PUTNEY, 12 Plaintiff, 13 14 No. 2:17-cv-1507 WBS DB P v. ORDER AND WARDEN ROBERT FOX, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). On September 14, 2017, plaintiff’s complaint was dismissed with leave to amend for 20 21 failure to state a claim. The deadline for filing this pleading passed on April 20, 2018, and 22 plaintiff has not filed a first amended complaint. Instead, he filed two documents requesting 23 injunctive relief, the appointment of counsel, and photocopies of court filings. (ECF Nos. 24, 30.) 24 I. 25 First Amended Complaint As noted, the docket reflects that the deadline for filing an amended complaint has passed, 26 and plaintiff has not yet filed an amended pleading. In a recently-filed letter, plaintiff asks if the 27 court has received his amended complaint “back in March of 2018.” There no such pleading on 28 file. In fact, the court granted plaintiff an extension of time on March 20, 2018, to file the 1 Dockets.Justia.com 1 pleading within thirty days. As of this date, plaintiff has not re-filed an amended complaint. 2 Nonetheless, plaintiff will be granted an of time until August 13, 2018 to re-file the first amended 3 complaint that he claims he has already filed. If plaintiff fails to do so, the undersigned will 4 recommend that this action be dismissed for plaintiff’s failure to comply with a court order and 5 failure to state a claim. 6 II. Request for Copies 7 Plaintiff also seeks photocopies of his “entire 450 page plus original submitted 1983 civil 8 suit [illegible] some couple of years back.” (ECF No. 30 at 2.) The nature of plaintiff’s request is 9 not clear since this action was filed only one year go in May 2017, not “some couple of years 10 back,” and the minimal filings in this case do not total 450 pages. Because of the vagueness of 11 plaintiff’s request, it will be denied. 12 III. Motion for Appointment of Counsel 13 Plaintiff next seeks appointment of counsel on the ground that he has an unspecified 14 mental impairment preventing him from meeting deadlines. The United States Supreme Court has 15 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 16 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 17 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 18 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 19 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 21 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 22 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 23 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 24 common to most prisoners, such as lack of legal education and limited law library access, do not 25 establish exceptional circumstances that would warrant a request for voluntary assistance of 26 counsel. In the present case, while plaintiff claims that a mental impairment warrants the 27 appointment of counsel, he does not specify the impairment or submit any supporting documents. 28 //// 2 1 Without this information, the court does not find the required exceptional circumstances. 2 Plaintiff’s request will therefore be denied. 3 IV. 4 Motion for Injunctive Relief Lastly, plaintiff seeks injunctive relief “from CDCR’s blatant discriminatory / retaliatory 5 acts against petitioner here simply for him filing lawsuit here and for me submitting additional 6 multiple urgent medical 602 appeals.” (ECF No. 30 at 2.) 7 A temporary restraining order is an extraordinary measure of relief that a federal court 8 may impose without notice to the adverse party only if, in an affidavit or verified complaint, the 9 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 10 movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). 11 Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary 12 restraining order shall be granted in the absence of actual notice to the affected party and/or 13 counsel[.]” In the absence of such extraordinary circumstances, the court construes a motion for 14 temporary restraining order as a motion for preliminary injunction. See, e.g., Aiello v. One West 15 Bank, No. 2:10–cv–0227–GEB–EFB, 2010 WL 406092, at *1–2 (E.D. Cal. Jan. 29, 2010). 16 A party requesting preliminary injunctive relief must show that “he is likely to succeed on 17 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 18 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 19 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief 20 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean 21 Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). 22 Plaintiff’s motion for injunctive relief is also far too vague to justify relief. Initially, there 23 is not an operable pleading in this action, and plaintiff’s original complaint was dismissed for 24 failure to state a claim. There is thus no basis upon which the court can find a likelihood of 25 success on the merits. Furthermore, plaintiff claims CDCR is discriminating and/or retaliating 26 against him, but this entity is not named in this action. To the extent plaintiff asks the court to 27 direct non-parties to act or to refrain from acting, the court lacks jurisdiction over them. 28 For these reasons, plaintiff’s request for injunctive relief must be denied. 3 1 V. Conclusion 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s request for copies (ECF No. 30) is denied; 4 2. Plaintiff’s motions for appointment of counsel (ECF Nos. 24, 30) are denied; 5 3. Plaintiff shall file his amended pleading by August 13, 2018; and 6 IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No. 7 24) be denied. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, plaintiff may file written objections 11 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” Any response to the objections shall be filed and served within fourteen 13 days after service of the objections. Plaintiff is advised that failure to file objections within the 14 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16 Dated: July 13, 2018 17 18 19 20 21 22 /DLB7; DB/Inbox/Substantive/putn1507.tro mac fac 23 24 25 26 27 28 4