(PC)Brown v. Reif et al, No. 2:2018cv01088 - Document 44 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/09/18 DENYING 34 , 35 , 36 , 40 , 42 plaintiff's motions for the court to contact the warden; DENYING 37 plaintiff's motion to amend his moti on for a preliminary injunction; DENYING 41 plaintiff's motion for the appointment of counsel. In light of plaintiffs history of filing repetitious motions, plaintiff shall hereinafter be limited to filing the following documents: a. One disp ositive motion, limited to one memorandum of points and authorities in support of the motion and one reply to any opposition; b. One set of objections to these and any future findings and recommendations. The failure to comply with this order shall result in improperly filed documents being stricken from the record and may result in a recommendation that this action be dismissed. recommending that plaintiff's motion for a preliminary injunction and temporary restraining order 38 be deni ed. With the exception of objections to the findings and recommendations and any non-frivolous motions for emergency relief, the court will not entertain or respond to any additional motions filed by plaintiff until the court has received the comple ted service forms for defendants C. Reif, S. Overby, and J. Gomez. Also, RECOMMENDING that plaintiff's motion for a preliminary injunction and temporary restraining order 38 be denied. Motion 38 referred to Judge Kimberly J. Mueller. Objections due within 14 days.(Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, 12 Plaintiff, 13 14 No. 2:18-cv-01088 KJM CKD P v. ORDER AND C. REIF, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 17 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). Currently pending before the court are five separate motions for the court to 20 contact the warden, a motion to amend plaintiff’s August 8, 2018 motion for a preliminary 21 injunction, a new motion for a preliminary injunction/temporary restraining order filed on 22 October 25, 2018, and a second request for the appointment of counsel. ECF Nos. 34-38. The 23 court will address each motion in turn. 24 I. Motions to Contact the Warden 25 In each of his motions for the court to contact the warden, plaintiff complains that prison 26 officials are interfering with his receipt of the court’s orders. See ECF Nos. 34-36, 40, 42. 27 Plaintiff requests another copy of the court’s September 14, 2018 order since he did not receive 28 the complete document. In response to plaintiff’s first three motions, the court re-served him with 1 1 a copy of the September 14, 2018 Order and Findings and Recommendations as well as the 2 service forms to be completed and returned to the court. Before he could receive these 3 documents, however, plaintiff filed two more duplicative motions. ECF Nos. 40, 42.1 In light of 4 the re-service of the prior court order, all of plaintiff’s motions for the court to contact the warden 5 will be denied as moot. Additionally, plaintiff is advised that his thirty days to return the service 6 forms did not commence until October 29, 2018 when the court re-served these documents on 7 plaintiff. Therefore, plaintiff has until November 28, 2018 to complete and return these service 8 documents to the court for defendants J. Gomez, S. Overby, and C. Reif. 9 II. Motion to Amend Preliminary Injunction Motion Plaintiff’s October 24, 2018 motion to amend his motion for a preliminary injunction is 10 11 nothing more than a duplicative motion for the court to contact the warden about interference 12 with his legal mail. ECF No. 37. For the reasons explained above, this motion will also be 13 denied as moot. 14 III. Motion for Preliminary Injunction/Temporary Restraining Order 15 In his October 25, 2018 motion for a preliminary injunction and temporary restraining order, 16 plaintiff alleges that “several correctional officers here at Corcoran State Prison has [sic] 17 threaten[ed] my life several times telling me that if I do not drop my 1983 law suit I may be killed 18 by my fellow-inmates….” ECF No. 38 at 2. Plaintiff then goes on to identify three specific 19 prison guards at Corcoran State Prison who made these threats. Id. at 2-3. He also complains that 20 two of these prison guards have spit in his food. Id. at 3. A fourth officer also threw away a pair 21 of plaintiff’s tennis shoes in alleged retaliation for the instant lawsuit. Id. 22 A preliminary injunction should not issue unless necessary to prevent threatened injury that 23 would impair the court’s ability to grant effective relief in a pending action. “A preliminary 24 injunction... is not a preliminary adjudication on the merits but rather a device for preserving the 25 status quo and preventing the irreparable loss of rights before judgment.” Sierra On–Line, Inc. v. 26 27 28 1 The court notes that the last two pages of the November 6, 2018 motion are a pleading involving a different prisoner in a different civil action. For this reason, the court has disregarded the last two pages. See ECF No. 42 at 8-9. 2 1 Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents 2 the exercise of a far reaching power not to be indulged except in a case clearly warranting it. 3 Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard 4 for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the 5 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 6 balance of equities tips in his favor, and that an injunction is in the public interest.’” Stormans, 7 Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, 8 Inc., 555 U.S. 7, 22 (2008) (internal quotations omitted). In cases brought by prisoners involving 9 conditions of confinement, any preliminary injunction “must be narrowly drawn, extend no 10 further than necessary to correct the harm the court finds requires preliminary relief, and be the 11 least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 12 With respect to plaintiff’s new allegations of threats on his life by Corcoran prison guards, the 13 undersigned recommends denying the motion for a preliminary injunction based on lack of 14 jurisdiction. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). This 15 court is unable to issue an order against non-parties to this action which would include Corcoran 16 State Prison officials. Id.; see also ECF No. 31 at 4. 17 IV. Motion for the Appointment of Counsel 18 Plaintiff filed a second request for the court to appoint counsel to represent him. District 19 courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. 20 Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the 21 court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 22 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 23 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” 24 exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability 25 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 26 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse 27 discretion in declining to appoint counsel). The burden of demonstrating exceptional 28 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 3 1 legal education and limited law library access, do not establish exceptional circumstances that 2 warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to meet 4 his burden of demonstrating exceptional circumstances warranting the appointment of counsel at 5 this time. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motions for the court to contact the warden (ECF Nos. 34, 35, 36, 40, 42) 8 9 10 11 12 13 are denied as moot. 2. Plaintiff’s motion to amend his motion for a preliminary injunction (ECF No. 37) is also denied as moot. 3. Plaintiff’s motion for the appointment of counsel (ECF No. 41) is denied without prejudice. 4. In light of plaintiff’s history of filing repetitious motions, plaintiff shall hereinafter be 14 limited to filing the following documents: 15 a. One dispositive motion, limited to one memorandum of points and authorities in 16 17 18 support of the motion and one reply to any opposition; b. One set of objections to these and any future findings and recommendations. 5. The failure to comply with this order shall result in improperly filed documents being 19 stricken from the record and may result in a recommendation that this action be 20 dismissed. 21 6. With the exception of objections to the findings and recommendations and any non- 22 frivolous motions for emergency relief, the court will not entertain or respond to any 23 additional motions filed by plaintiff until the court has received the completed service 24 forms for defendants C. Reif, S. Overby, and J. Gomez. 25 26 IT IS FURTHER RECOMMENDED that plaintiff’s motion for a preliminary injunction and temporary restraining order (ECF No. 38) be denied. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 objections shall be served and filed within fourteen days after service of the objections. The 5 parties are advised that failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: November 9, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 12/brow1088.tro#2.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 5