Carter v. Fernandez et al

Filing 113

ORDER DENYING Motion for Court-Ordered Phone Calls 99 ; ORDER DENYING Motion for Appointment of Counsel 103 , signed by Magistrate Judge Dennis L. Beck on 1/4/12: Motion 103 is DENIED without prejudice. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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IVAN RAY CARTER, JR.,

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1:08-cv-01841-DLB (PC)

Plaintiff,

ORDER DENYING MOTION FOR COURTORDERED PHONE CALLS (DOC. 99)

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A. FERNANDEZ, et al.,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL (DOC. 103)

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Defendants.
________________________________/

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v.

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I.

Motion For Phone Calls
On November 2, 2011, Plaintiff filed a motion requesting that the Court order phone calls

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for Plaintiff at his prison. Doc. 99. The Court construes this as a motion for preliminary

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injunction. “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 preliminary

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relief, that the balance of equities tips in his favor, and that an injunction is in the public

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interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted).

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The purpose of preliminary injunctive relief is to preserve the status quo or to prevent irreparable

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injury pending the resolution of the underlying claim. Sierra On-line, Inc. v. Phoenix Software,

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Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “A preliminary injunction is an extraordinary remedy

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never awarded as of right.” Winter, 555 U.S. at 24. An injunction may only be awarded upon a

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clear showing that the movant is entitled to relief. Id. at 22. “A federal court may issue an

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injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction

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over the claim; it may not attempt to determine the rights of persons not before the court.”

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Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983).

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Plaintiff is requesting 120 days of access to phone calls to prepare for his case, including
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locating an expert witness, an investigator, communication with Defendants’ counsel, and to

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seek counsel. Plaintiff is currently incarcerated at California Substance Treatment Facility

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(“CSATF”). Plaintiff’s action occurred at Kern Valley State Prison. The Court lacks

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jurisdiction over any prison officials at CSATF. Accordingly, Plaintiff’s motion, filed

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November 2, 2011, is denied.

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II.

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Motion For Appointment Of Counsel
On November 21, 2011, Plaintiff filed a motion seeking the appointment of counsel.

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Doc. 103. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court

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is faced with similar cases almost daily. Further, 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.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
3b142a

January 4, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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