Asberry v. Biter

Filing 82

ORDER DENYING 75 Motion to Appoint Counsel, Appointment of Legal Assistant, and Additional Time to Reply to Interrogatories; FINDINGS and RECOMMENDATIONS to (1) Deny 67 Motion to Access Law Library; (2) Deny 71 Motion for Court Order to Provide Plaintiff Access to Legal Files; and (3) Deny 75 Motion for Access to Medical Files; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 12/27/2017. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,
v.
WARDEN BITER, et al.,
Defendants.

CASE NO. 1:16-cv-01741-DAD-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL,
APPOINTMENT OF LEGAL ASSISTANT,
AND ADDITIONAL TIME TO REPLY TO
INTERROGATORIES
(ECF No. 75)

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FINDINGS AND RECOMMENDATIONS TO:

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(1) DENY MOTION TO ACCESS LAW
LIBRARY(ECF No. 67);

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(2) DENY MOTION FOR COURT ORDER TO
PROVIDE PLAINTIFF ACCESS TO LEGAL
FILES (ECF No. 71); AND

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(3) DENY MOTION FOR ACCESS TO
MEDICAL FILES (ECF No. 75)

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.
Before the Court are Plaintiff’s motions for access to the law library (ECF No. 67);
for access to his legal papers (ECF No. 71); and to appoint counsel. (ECF No. 75.)
Plaintiff also requests the appointment of a legal assistant to provide telephonic advice,
access to his medical files, and additional time to respond to Defendants’ Special
Interrogatories. (ECF No. 75),

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Defendants Ferris and Godfrey filed a response (ECF No. 76) to Plaintiff’s motion

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for additional time to respond to Defendants’ Special Interrogatories, but then withdrew

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the response after Plaintiff answered their Special Interrogatories. (ECF No. 78.) No

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other opposition or reply has been filed, and the time for doing so has passed.

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These matters are deemed submitted. Local Rule 230(l).
I.

Appointment of Counsel

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Plaintiff does not have a constitutional right to be appointed counsel in this action,

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

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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). In

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certain exceptional circumstances the court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer

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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

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

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light of the complexity of the legal issues involved.” Id. (internal quotation marks and

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citations omitted).

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In the present case, the Court does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases almost daily. Further, at this stage

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in the proceedings, the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits. And, based on a review of the record in this case, the court does

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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 will be
denied.

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II.

Legal Assistant

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Plaintiff cites no authority authorizing the Court to provide a legal assistant to

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Plaintiff at public expense, and the Court finds none. See Tedder v. Odel, 890 F.2d 210,

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211-12 (9th Cir. 1989) (“[T]he expenditure of public funds [on behalf of an indigent

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litigant] is proper only when authorized by Congress. . . .” (quoting United States v.

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MacCollom, 426 U.S. 317, 321 (1976)). Accordingly, Plaintiff’s request that a legal expert

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be appointed to provide legal advice on his behalf (ECF No. 75) will be denied.

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III.

Additional Time to Respond

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Defendants assert that Plaintiff has timely responded to Defendants’ Special

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Interrogatories. (ECF No. 78.) Accordingly, Plaintiff’s request for additional time (ECF

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No. 75) will be denied as moot.

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IV.

Access to Law Library, Access to Legal and Medical files

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Plaintiff is currently housed at the R.J. Donovan Correctional Facility and seeks

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injunctive relief requiring officials at that institution to allow him access to the law library

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and to his legal and medical files. (ECFs Nos. 67, 71, 75.) The Court has previously

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addressed several such requests. (ECF Nos. 20, 24, 42, 59.) All were denied on the

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grounds that the Court does not have authority to order the relief Plaintiff requests

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because the officials at R. J. Donovan are not parties to this suit. (ECF Nos. 62, 64, 68,

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77.) Plaintiff has repeatedly been advised that the relief he requests cannot be granted.

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Further such requests waste court resources and may subject Plaintiff to sanctions.

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Plaintiff again is informed that federal courts are courts of limited jurisdiction. The

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pendency of this action does not give the Court jurisdiction over prison officials in

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general or enable it to provide relief that is not the subject of the operative complaint.

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Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009); Mayfield v. United

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States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties

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in this action and to the cognizable legal claims upon which the action proceeds.

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Summers, 555 U.S. at 491-93; Mayfield, 599 F.3d at 969. A court should not issue an

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injunction when the relief sought is not of the same character as that sought in the

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underlying action and the injunction deals with a matter lying wholly outside the issues in

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the underlying action. De Beers Consol. Mines v. U.S., 325 U.S. 212, 220 (1945).

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Moreover, while “[a] federal court may issue an injunction if it has personal jurisdiction

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over the parties and subject matter jurisdiction over the claim; it may not attempt to

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determine the rights of persons not before the court.” Zepeda v. United States

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Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added).

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Here, Plaintiff is seeking injunctive relief against individuals not before the court

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and dealing with matters outside the issues in the underlying action. Plaintiff is currently

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in custody at Donovan and his claims concern his medical treatment and conditions of

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confinement at Kern Valley State Prison. Plaintiff is not in the custody of the named

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Defendants and it would not appear that any Defendant could take any action with

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respect to Plaintiff’s access to the law library or review of his medical or legal files.

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Furthermore, access to Plaintiff’s files is outside the scope of the claims upon which the

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action proceeds. To the extent Plaintiff claims that officials at Donovan have interfered

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with his access to the courts, such claims must be brought in a separate action. The

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motions for a court order should be denied.

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IV.

Conclusion, Order, and Recommendation

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Plaintiff’s motion (ECF No. 75) is HEREBY DENIED, to the extent that it requests

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appointment of counsel, appointment of a legal assistant and additional time to respond

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to Defendants’ Special Interrogatories.

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Additionally, it is HEREBY RECOMMENDED that:
1.

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Plaintiff’s motion for a court order to have access to the law library
(ECF No. 67) be DENIED;

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Plaintiff’s motion for access to legal papers (ECF No. 71) be
DENIED; and

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3.

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Plaintiff’s motion (ECF No. 75) requesting access to legal or medical
files be DENIED.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen days after being served with these findings and recommendations, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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days after service of the objections. The parties are advised that failure to file objections

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within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

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1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 27, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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