Mitchell v. Davey, et al.

Filing 32

ORDER DENYING Motion for Order Under the All Writs Act, or in the Alternative, for Appointment of Counsel 31 , signed by Magistrate Judge Erica P. Grosjean on 3/22/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN E. MITCHELL,
Plaintiff,

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ORDER DENYING MOTION FOR
ORDER UNDER THE ALL WRITS
ACT, OR IN THE ALTERNATIVE,
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF No. 31)

v.

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1:16-cv-01148-EPG (PC)

CRM M.S. ROBICHEAUX and
LIEUTENANT THOMPSON,

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Defendants.

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I.

BACKGROUND
John Mitchell (“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.

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commencing this action on August 5, 2016. (ECF No. 1). On August 26, 2016, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF

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No. 7), and no other parties have made an appearance.1 Therefore, pursuant to Appendix

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A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct

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any and all proceedings in the case until such time as reassignment to a District Judge is

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required. Local Rule Appendix A(k)(3).

Plaintiff filed the Complaint

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The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A. (ECF No.

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16). The Court found that it states a cognizable claim against defendants Thompson and

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Robicheaux for violation of Plaintiff’s First Amendment free exercise rights. The Court found

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that Plaintiff failed to state any other claims against these defendants and any claims against

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other defendants. (Id.). The Court allowed Plaintiff the opportunity to amend his complaint if

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he so desired. (Id.). On January 17, 2017, Plaintiff notified the Court that he is willing to

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The Office of the Attorney General appeared only to respond to a motion for injunctive relief
that was filed earlier in the case. It did not appear on behalf of any defendants. (ECF No. 11, p. 1 n. 1).
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proceed only on the claim against defendants Thompson and Robicheaux for violation of

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Plaintiff’s First Amendment free exercise rights (Plaintiff also objected to the dismissal of the

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other defendants under Federal Rule of Civil Procedure 72(b)). (ECF No. 25). The Complaint

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is now in the process of being served by the United States Marshal Service. (ECF No. 30).

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On March 8, 2017, Plaintiff filed a motion for an order under the All Writs Act or, in

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the alternative, for appointment of pro bono counsel. (ECF No. 31). This motion is now before

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the court.

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II.

MOTION FOR AN ORDER UNDER THE ALL WRITS ACT

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Plaintiff is presently incarcerated at the R.J. Donovan Correctional Facility (“RJD”) in

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San Diego, California. Plaintiff requests a court order directing non-parties at RJD to not

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interfere with his ability to litigate this case. Plaintiff asserts that non-parties Chief Medical

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Officer Walker, Dr. Clayton, Chief Psychologist R. Barenchi, and Nurse Melton refuse to

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reinstate Plaintiff’s dosage of the medication Methodone, and that without the Methodone

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Plaintiff will be unable to write and will be in unbearable pain. The Court construes this

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motion as a motion for preliminary injunctive relief.

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The purpose of a preliminary injunction is to preserve the status quo if the balance of

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equities so heavily favors the moving party that justice requires the court to intervene to secure

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the positions until the merits of the action are ultimately determined. University of Texas v.

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Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is available to a plaintiff who

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“demonstrates either (1) a combination of probable success and the possibility of irreparable

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harm, or (2) that serious questions are raised and the balance of hardship tips in its favor.”

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Arcamuzi v. Continental Air Lines, Inc., 819 F. 2d 935, 937 (9th Cir. 1987). Under either

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approach the plaintiff “must demonstrate a significant threat of irreparable injury.” Id. Also,

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an injunction should not issue if the plaintiff “shows no chance of success on the merits.” Id.

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At a bare minimum, the plaintiff “must demonstrate a fair chance of success of the merits, or

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questions serious enough to require litigation.” Id.

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Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court

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must have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95,
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102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation

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of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of

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Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). If the court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id.

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The events at issue in this case allegedly occurred at California State Prison, Corcoran,

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when Plaintiff was incarcerated there. Now Plaintiff is incarcerated at RJD and seeks an order

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directing non-parties at RJD to act. The court does not have personal jurisdiction over any of

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the non-parties and therefore cannot order them to act.

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

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claim; it may not attempt to determine the rights of persons not before the court.@ Zepeda v.

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United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985). Moreover, the order

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Plaintiff seeks would not remedy any of the claims upon which this action proceeds.

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

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motion for an order under the All Writs Act must be denied.

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III.

“A federal court may issue an

MOTION FOR APPOINTMENT OF PRO BONO COUNSEL

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Plaintiff also seeks appointed counsel to represent him in this case, asserting that his

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ability to write is impaired. Plaintiff does not have a constitutional right to appointed counsel

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in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot

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require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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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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“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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While the Court is sympathetic to Plaintiff’s plight, the Court does not find the required
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exceptional circumstances. At this early stage of the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits. While the Complaint has been

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screened, no defendants have appeared in the case yet. Moreover, based on the record in this

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case, the Court finds that Plaintiff can adequately articulate his claims and respond to the

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Court’s orders.

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Therefore, Plaintiff’s motion for appointment of pro bono counsel will be denied.

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Plaintiff is advised that he is not precluded from renewing the motion for appointment of pro

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bono counsel at a later stage of the proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff's motion for an order under the All Writs Act is DENIED; and

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2.

Plaintiff=s motion for appointment of pro bono counsel is DENIED without

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prejudice.

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IT IS SO ORDERED.
Dated:

March 22, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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