Miles, II v. Crenshaw et al

Filing 9

ORDER DENYING 6 Motion to Appoint Counsel and/or for Court Order Ensuring that Plaintiff Stay in Contact with other Inmate signed by Magistrate Judge Gary S. Austin on 11/13/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND/OR FOR COURT ORDER ENSURING THAT PLAINTIFF STAY IN CONTACT WITH OTHER INMATE Plaintiff, 13 14 1:17-cv-01436 DAD-GSA-PC COURTNEY LUTHER MILES, II, v. V. CRENSHAW, et al., 15 (ECF No. 6.) Defendants. 16 17 18 I. BACKGROUND 19 Courtney Luther Miles II (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2017, 21 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On November 1, 2017, 22 Plaintiff filed a motion for appointment of counsel and/or for a court order ensuring that Plaintiff 23 stay in contact with another inmate named Xavier Nailing. (ECF No. 6.) 24 II. MOTION FOR APPOINTMENT OF COUNSEL 25 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 26 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 27 represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for 28 the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 1 1 certain exceptional circumstances the court may request the voluntary assistance of counsel 2 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 volunteer counsel only in the most serious and exceptional cases. In determining whether 5 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 6 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 8 In the present case, the court does not find the required exceptional circumstances. At this 9 early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 10 succeed on the merits. Plaintiff filed the Complaint on October 25, 2017, less than a month ago, 11 and the Complaint awaits the court’s screening required under 28 U.S.C. § 1915. Thus, to date 12 the court has not found any cognizable claims in Plaintiff’s Complaint for which to initiate 13 service of process, and no other parties have yet appeared. Therefore, Plaintiff’s motion shall be 14 denied without prejudice to renewal of the motion at a later stage of the proceedings. 15 III. 16 MOTION FOR COURT ORDER Plaintiff requests a court order ensuring that he stay in contact with another inmate named 17 Xavier Nailing. Plaintiff asserts that inmate Nailing has experience with Federal Civil 18 Complaints, has filed § 1983 cases in the past, and helped Plaintiff draft his Complaint. Plaintiff 19 seeks to stay in contact with inmate Xavier Nailing, who has now been transferred to another 20 prison. 21 Inmates may only correspond with one another if they obtain written authorization from 22 the appropriate prison officials. Cal. Code Regs., tit. 15 ' 3139 (2017). Inmates may initiate 23 requests to correspond with other inmates who are under the jurisdiction of any county, state or 24 federal, juvenile or adult correctional agency by contacting their Correctional Counselor I (CCI). 25 Id. Plaintiff is advised to follow procedures and use the available resources at the prison to obtain 26 written authorization after consideration by prison officials of safety, security, and procedural 27 priorities. The Court recognizes that prison administrators “should be accorded wide-ranging 28 deference in the adoption and execution of policies and practices that in their judgment are 2 1 needed to preserve internal order and discipline and to maintain institutional security.” Whitley 2 v. Albers, 475 U.S. 312, 321-322 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970); 3 Norwood v. Vance, 591 F.3d 1062, 1066-67 (9th Cir. 2010). 4 Further, the Court does not have jurisdiction in this action over anyone other than Plaintiff 5 at this stage of the case, and cannot order prison officials to allow Plaintiff to correspond with 6 other inmates. E.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 7 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 8 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 9 (9th Cir. 2006). Therefore, Plaintiff’s motion must be denied. 10 IV. CONCLUSION 11 Based on the foregoing, IT IS HEREBY ORDERED that: 12 1. DENIED without prejudice; and 13 14 Plaintiff’s motion for appointment of counsel, filed on November 1, 2017, is 2. Plaintiff’s motion for a court order ensuring that he stay in contact with inmate Xavier Nailing is DENIED. 15 16 IT IS SO ORDERED. 17 18 Dated: November 13, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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