Villescas v. Dotson et al
Filing
28
FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 27 Motion for Court Order and Appointment of Counsel, signed by Magistrate Judge Stanley A. Boone on 12/1/2014, referred to Judge O'Neill. Objections to F&R Due Within 30 Days. (Marrujo, C)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
ALBERTO VILLESCAS,
12
13
14
15
Plaintiff,
v.
M.T. DOTSON, et al.,
Defendants.
16
17
18
)
)
)
)
)
)
)
)
)
)
Case No.: 1:12-cv-02068-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
COURT ORDER AND APPOINTMENT OF
COUNSEL
[ECF No. 27]
Plaintiff Alberto Villescas is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
19
I.
20
INTRODUCTION
21
22
23
Now pending before the Court is Plaintiff’s motion for court order and appointment of counsel,
filed November 24, 2014.
Plaintiff seeks a court order to allow him access to the law library for two to four hours per
24
week. Plaintiff indicates that he has filed inmate grievances and request for modification or
25
accommodation seeking access to the law library. However, Plaintiff has not had access to the law
26
library or copy services for over six weeks. In the alternative, Plaintiff seeks the appointment of
27
counsel to assist him in the continued litigation of this case. The Court construes Plaintiff’s request as
28
a motion for a preliminary injunction to grant him access to the law library and/or copy services.
1
1
II.
2
DISCUSSION
3
A.
4
As previously stated, Plaintiff moves for a court order requiring the California Department of
5
Access to the Law Library and/or Copy Services
Corrections and Rehabilitation (CDCR) to grant him access to the law library and/or copy services.
6
Plaintiff’s motion includes allegation and a request for a court order against a party who is not
7
named in this action. Although the CDCR is the employer of the defendants in this action, it is named
8
a party in this action. To the extent Plaintiff seeks injunctive relief against the CDCR, the Court is
9
unable to issue an order against individuals who are not parties to an action pending before it. See
10
11
Zenith Radio Corp., v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).
A preliminary injunction should not issue unless necessary to prevent threatened injury that
12
would impair the court’s ability to grant effective relief in a pending action. “A preliminary injunction
13
… is not a preliminary adjudication on the merits but rather a device for preserving the status quo and
14
preventing the irreparable loss of right before judgment.” Sierra On-Line, Inc. v. Phoenix Software,
15
Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents the exercise of a far
16
reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. V. Tapeprinter,
17
Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard for preliminary injunctive relief
18
requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer
19
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and
20
that an injunction is in the public interest.’” Stormans, Inc., v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
21
2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In cases brought by
22
prisoners involving conditions of confinement, any preliminary injunction “must be narrowly drawn,
23
extend no further than necessary to correct the harm the court finds requires preliminary relief, and be
24
the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).
25
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518
26
U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. Hust, 588
27
F.3d 652, 655 (9th Cir. 2009). However, to state a viable claim for relief, Plaintiff must show that he
28
suffered an actual injury, which requires “actual prejudice to contemplated or existing litigation.”
2
1
Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348)
2
(internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518
3
U.S. at 351; Phillips, 588 F.3d at 655.
4
A prisoner cannot submit conclusory declarations of injury by claiming his access to the courts
5
has been impeded. Thus, it is not enough for an inmate to show some sort of denial of access without
6
further elaboration. Plaintiff must demonstrate “actual injury” from the denial and/or delay of access.
7
The Supreme Court has described the “actual injury” requirement:
8
9
10
11
[T]he inmate … must go one step further and demonstrate that the alleged
shortcomings in the library or legal assistance program hindered his efforts to pursue a
legal claim. He might show, for example, that a complaint he prepared was dismissed
for failure to satisfy some technical requirement which, because of deficiencies in the
prison’s legal assistance facilities, he could not have known. Or that he suffered
arguably actionable harm that he wished to bring before the courts, but was so stymied
by inadequacies of the law library that he was unable even to file a complaint.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Lewis, 518 U.S. at 351.
In this instance, Plaintiff has failed to allege or demonstrate “actual injury” by the failure of
access to the law library. Thus, Plaintiff has failed to demonstrate that in the absence of preliminary
injunctive relief he is likely to suffer actual injury in prosecuting his case. “Speculative injury does
not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean
Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988), citing Goldies Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Plaintiff has provided no basis for this court to
interfere with the prison’s administration of its law library, and his request for injunctive relief should
be denied.
B.
Appointment of Counsel
There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d
1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to
28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490
U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the
voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
28
3
1
Without a reasonable method of securing and compensating counsel, the court will seek
2
volunteer counsel only in the most serious and exceptional cases. In determining whether
3
“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the
4
merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
5
legal issues involved.” Id. (internal quotation marks and citations omitted).
6
In the present case, the Court does find that neither the interests of justice nor exceptional
7
circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th
8
Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on claims
9
of deliberate indifference, retaliation, and excessive force, and Defendants filed an answer to the
10
11
complaint on April 23, 2014.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se
12
litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative
13
complexity of the matter,” the “exceptional circumstances” which might require the appointment of
14
counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28
15
U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner
16
“may well have fared better-particularly in the realm of discovery and the securing of expert
17
testimony.”) Thus, the Court finds that Plaintiff’s conclusory claims relating to denial of access to law
18
library and copy services does not present exceptional circumstances warranting the appointment of
19
counsel at this time. Accordingly, Plaintiff motion for appointment of counsel should be DENIED,
20
without prejudice.
21
C.
22
Plaintiff attached several discovery requests to his present motion, along with a proof of
23
Discovery Requests
service on Defendants.
24
As set forth in the Court’s First Informational Order, discovery is self-executing until such
25
time as a party becomes dissatisfied with a response and seeks relief from the court pursuant to the
26
Federal Rules of Civil Procedure. Interrogatories, requests for admissions, requests for production of
27
documents, and responses thereto shall not be filed with the court until there is a proceeding in which
28
the document or proof of service is at issue. Such documents are to be served on the opposing party,
4
1
and not with the court. Local Rule 33-250, 36-250. Discovery requests improperly filed with the court
2
shall be stricken from the record. (ECF No. 3.) Accordingly, for the foregoing reasons, Plaintiff=s
3
discovery requests attached to his present motion should be stricken from the record.
4
III.
5
RECOMMENDATIONS
6
Based on the foregoing,
7
IT IS HEREBY RECOMMENDED that:
8
1.
Plaintiff’s request for a preliminary injunction be DENIED;
9
2.
Plaintiff’s motion for appointment of counsel be DENIED; and
10
3.
Plaintiff’s discovery requests be STRICKEN from the record.
11
These Findings and Recommendations will be submitted to the United States District Judge
12
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days
13
after being served with these Findings and Recommendations, the parties may file written objections
14
with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
15
Recommendations.” The parties are advised that failure to file objections within the specified time
16
may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911,
17
2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
18
Cir. 1991)).
19
20
IT IS SO ORDERED.
21
Dated:
22
December 1, 2014
UNITED STATES MAGISTRATE JUDGE
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?