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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND/OR
FOR COURT ORDER ENSURING THAT
PLAINTIFF STAY IN CONTACT WITH
OTHER INMATE

Plaintiff,

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1:17-cv-01436 DAD-GSA-PC

COURTNEY LUTHER MILES, II,

v.
V. CRENSHAW, et al.,

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(ECF No. 6.)

Defendants.

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I.

BACKGROUND

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Courtney Luther Miles II (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2017,

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Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On November 1, 2017,

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Plaintiff filed a motion for appointment of counsel and/or for a court order ensuring that Plaintiff

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stay in contact with another inmate named Xavier Nailing. (ECF No. 6.)

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II.

MOTION 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), and the court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (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 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. At this

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early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Plaintiff filed the Complaint on October 25, 2017, less than a month ago,

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and the Complaint awaits the court’s screening required under 28 U.S.C. § 1915. Thus, to date

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the court has not found any cognizable claims in Plaintiff’s Complaint for which to initiate

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service of process, and no other parties have yet appeared. Therefore, Plaintiff’s motion shall be

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denied without prejudice to renewal of the motion at a later stage of the proceedings.

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III.

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MOTION FOR COURT ORDER
Plaintiff requests a court order ensuring that he stay in contact with another inmate named

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Xavier Nailing.

Plaintiff asserts that inmate Nailing has experience with Federal Civil

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Complaints, has filed § 1983 cases in the past, and helped Plaintiff draft his Complaint. Plaintiff

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seeks to stay in contact with inmate Xavier Nailing, who has now been transferred to another

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prison.

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Inmates may only correspond with one another if they obtain written authorization from

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the appropriate prison officials. Cal. Code Regs., tit. 15 ' 3139 (2017). Inmates may initiate

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requests to correspond with other inmates who are under the jurisdiction of any county, state or

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federal, juvenile or adult correctional agency by contacting their Correctional Counselor I (CCI).

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Id. Plaintiff is advised to follow procedures and use the available resources at the prison to obtain

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written authorization after consideration by prison officials of safety, security, and procedural

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priorities. The Court recognizes that prison administrators “should be accorded wide-ranging

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deference in the adoption and execution of policies and practices that in their judgment are
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needed to preserve internal order and discipline and to maintain institutional security.” Whitley

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v. Albers, 475 U.S. 312, 321-322 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970);

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Norwood v. Vance, 591 F.3d 1062, 1066-67 (9th Cir. 2010).

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Further, the Court does not have jurisdiction in this action over anyone other than Plaintiff

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at this stage of the case, and cannot order prison officials to allow Plaintiff to correspond with

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other inmates. E.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665

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(1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454

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U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126

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(9th Cir. 2006). Therefore, Plaintiff’s motion must be denied.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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DENIED without prejudice; and

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Plaintiff’s motion for appointment of counsel, filed on November 1, 2017, is

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Plaintiff’s motion for a court order ensuring that he stay in contact with inmate
Xavier Nailing is DENIED.

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IT IS SO ORDERED.
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Dated:

November 13, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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