Blacher v. Johnson et al

Filing 67

ORDER Denying Plaintiff's 61 Notice Concerning Present and Undue State Imposed Disability and Motion for Adequate-Just Relief, signed by Magistrate Judge Erica P. Grosjean on 10/21/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S NOTICE
CONCERNING PRESENT AND UNDUE
STATE IMPOSED DISABILITY AND
MOTION FOR ADEQUATE-JUST RELIEF
(ECF NO. 61)

Plaintiff,

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1:12-cv-01159-EPG (PC)

MARLON BLACHER,

v.
S. JOHNSON,

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Defendant.

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Marlon Blacher (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Both parties have consented to

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magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF Nos. 5 & 26). This case now

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proceeds on Plaintiff’s Complaint, filed on July 16, 2012 (ECF No. 1), against Chief Deputy

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Warden S. Johnson (“Defendant”) on Plaintiff’s claim relating to an unclothed body search (ECF No.

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On October 6, 2016, Plaintiff filed a Notice Concerning Present and Undue State Imposed

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Disability and Motion for Adequate-Just Relief (“the Motion”). (ECF No. 61). The Motion asks

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for appointment of counsel and a transfer to the Federal Bureau of Prisons until this case ends.

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(Id. at p. 3).

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I.

REQUEST FOR 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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,
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490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request

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the voluntary assistance of counsel pursuant to section 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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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 allegations

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which, if proved, would entitle him to relief, his case is not exceptional. The legal issue in this

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case — whether an unclothed body search was unreasonable — is not complex. A review of the

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record in this case shows that Plaintiff is responsive, adequately communicates, and is able to

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articulate his claims. Further, the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Id. Therefore, Plaintiff’s request for the appointment of counsel shall be

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denied.

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II.

REQUEST FOR TRANFER TO FEDERAL BUREAU OF PRISONS
Plaintiff also requests to be transferred to the Federal Bureau of Prisons. The Court

construes this request as a request for a preliminary injunction.

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As a preliminary matter, however, a federal district court may issue emergency injunctive

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relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the

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lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting

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that one “becomes a party officially, and is required to take action in that capacity, only upon

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service of summons or other authority-asserting measure stating the time within which the party

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served must appear to defend.”). The court may not attempt to determine the rights of persons not

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before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda

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v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702

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(1979) (injunctive relief must be “narrowly tailored to give only the relief to which plaintiffs are

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entitled”). Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties
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to the action,” their “officers, agents, servants, employees, and attorneys,” and “other persons

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who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

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On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is

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likely to 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 in the

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public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that

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irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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Plaintiff is presently incarcerated at California State Prison-Solano (CSP-Solano) in

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Vacaville, California. Plaintiff seeks a court order requiring someone to transfer him to the

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Federal Bureau of Prisons, where he would reside until this case ends. As such, the injunction

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would have to be at least in part directed to the Federal Bureau of Prisons. However, the events at

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issue in Plaintiff’s Complaint allegedly occurred at California State Prison-Corcoran, when

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Plaintiff was incarcerated at that facility. (ECF No. 1, p 3). Therefore, the order Plaintiff seeks

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goes beyond the defendant in this case and the prison where the incident took place.

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Accordingly, the Court lacks jurisdiction to issue the order sought by Plaintiff, and Plaintiff=s

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request to be transferred must be denied.

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Additionally, the requested transfer is not sufficiently related to the harm in Plaintiff’s
Plaintiff’s Complaint relates to an unclothed body search. The transfer is not

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Complaint.

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something required to remedy the unclothed body search. It is thus outside the scope of the

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Complaint.

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Notice Concerning

Present and Undue State Imposed Disability and Motion for Adequate-Just Relief is DENIED.

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IT IS SO ORDERED.
Dated:

October 21, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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