(PC) Andrew v. United States of America et al

Filing 28

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 25 Motion for Preliminary Injunction; ORDER DENYING Plaintiff's 26 Motion to Appoint Counsel signed by Magistrate Judge Christopher D. Baker on 03/25/2024. Referred to Judge Sherriff; Objections to F&R due within Fourteen-Days. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORVELL ANDREW,

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Plaintiff,
v.

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UNITED STATES OF AMERICA, et al.,

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Defendants.

Case No. 1:22-cv-01290-KES-CDB (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
(Doc. 25)

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

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(Doc. 26)

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FOURTEEN (14) DAY DEADLINE

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Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

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(1971). Pending before the Court is Plaintiff’s second motion for preliminary injunction and

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temporary restraining order (Doc. 25) and motion for appointment of counsel (Doc. 26), both

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filed March 22, 2024.

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I.

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BACKGROUND
The Court screened Plaintiff’s original complaint on July 20, 2023, and found that the

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complaint failed to state a claim. (Doc. 19). On August 12, 2023, Plaintiff filed a first amended

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complaint (FAC) in which she names as Defendants the warden, associate warden, and various

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medical staff, counselors, correctional officers and staff of USP Atwater. (Doc. 21). Plaintiff

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alleges causes of action for cruel and unusual punishment, due process, and “right to medical

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care” stemming from incidents occurring at USP Atwater while she was housed there in April

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2020. Plaintiff has been housed at USP Victorville since as early as February 1, 2023. (Doc. 18).

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The Court has not yet screened Plaintiff’s FAC.

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II.

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PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff’s motion for injunctive relief is unaccompanied by any supporting memorandum,

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citation to legal authorities or declarations. It appears from Plaintiff’s four-page proposed order

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that she seeks a preliminary injunction enjoining the DSCC Administrator, and the Warden and

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Health Services Administrator of USP Victorville, from denying Plaintiff medical treatment for

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her left eye and left hand and requiring that Plaintiff be taken to bone, eye, glaucoma and

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gastrointestinal specialists. Plaintiff also seeks injunctive relief to receive back, pain and nerve

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medications and to receive silboxone (not to be administered via syringe).

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Separately, Plaintiff seeks to be placed in a “low custody prison,” specifically FCC

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Yazoo, and for her classification points to be re-scored. Plaintiff also seeks for custodial staff to

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cease placing holdover inmates on lockdown with regular inmate population, to place televisions

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in the holdover unit, to ensure SHU inmates receive books from the mail and be permitted to use

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ink pens, to give certain commissary privileges to SHU inmates, and to permit library access on

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lockdowns. Also, Plaintiff seeks to enjoin the named parties from sending Plaintiff to active

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yards given her “bad standings” with former gang members.

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From her proposed order granting a preliminary injunction, Plaintiff appears to additional

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forms of relief, including better and more equitable access to religious meals, prescribed medical

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marijuana, and to have an “erroneous sexual predator designation removed from my record.”

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A.

Jurisdiction and Rule 65

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A plaintiff seeking a

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preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Id. at 20.

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A “federal court may issue an injunction [only] if it has personal jurisdiction over the

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

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of persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). “[A]n

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injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ . . .

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and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible

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breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting

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Zepeda, 753 F.2d at 727, 728 n.1). Furthermore, the pendency of this action does not give the

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Court jurisdiction to enjoin non-parties based on conduct unrelated to the suit sub judice. See

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Fed. R. Civ. P. 65(d) (an injunction may bind only the parties, their officers, agents, servants,

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employees, and attorneys, and other persons “in active concert or participation” with those

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persons). In other words, the Court’s jurisdiction is limited to the parties in this action and to the

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viable legal claims upon which this action is proceeding. Id.

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Separately, the injunctive relief sought must be related to the claims brought in the

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complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir.

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2015) (“When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the

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court does not have the authority to issue an injunction.”). In other words, “there must be a

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relationship between the injury claimed in the motion for injunctive relief and the conduct

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asserted in the underlying complaint.” Id. at 636 (adopting Devose v. Herrington, 42 F.3d 470,

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471 (8th Cir. 1994)). Absent a nexus between the injury claimed in the motion and the

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underlying complaint, the Court lacks the authority to grant Plaintiff injunctive relief. Id. A

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preliminary injunction only is appropriate when it grants relief of the same nature as that to be

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finally granted. Id. (citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)).

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B.

Discussion

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Here, the Court lacks jurisdiction to issue the orders Plaintiff seeks. Plaintiff’s first

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amended complaint names defendants employed at USP Atwater during the incident giving rise

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to Plaintiff’s claims (in April 2020). (See Doc. 21). Plaintiff’s pending motion names
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Defendants employed at USP Victorville – a location outside of this Court’s jurisdiction – for

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events unrelated to and occurring long after the events pleaded in Plaintiff’s as-yet screened first

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amended complaint. Thus, this Court does not have personal jurisdiction or subject matter

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jurisdiction over prison officials at USP Victorville to whom the orders Plaintiff seeks would be

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directed. Hence, this Court cannot take any action on Plaintiff’s requests. See Pac. Radiation

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Oncology, 810 F.3d at 633; Fed. R. Civ. P. 65(d).

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III.

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PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
In her separate motion for appointment of counsel, Plaintiff states that the Court denied

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an earlier request for appointment of counsel. (Doc. 26 ¶ 4). A review of the docket reflects that

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assertion is untrue as Plaintiff has not before filed a motion for appointment of counsel. Plaintiff

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advances three grounds warranting appointment of counsel: (1) she cannot afford counsel; (2)

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her imprisonment, limited access to a law library and lack of legal knowledge limits her ability to

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litigate the case; and (3) appointed counsel would “enable Plaintiff to present evidence and cross

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examine witnesses.

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Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952,

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954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28

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U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in

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“exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant

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to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Given that the Court has no reasonable method of securing and compensating counsel,

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the Court will seek volunteer counsel only in extraordinary cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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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 & citations omitted).

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The Court must evaluate the likelihood of Plaintiff’s success on the merits of his claim.

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Here, while Plaintiff’s original complaint was screened as required by 28 U.S.C. § 1983 and

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found not to state a claim upon which relief may be granted (see Doc. 19), Plaintiff filed a first
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amended complaint in an attempt to remedy the discrepancies noted in the Court’s screening

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order. (Doc. 21). Because the Court has not yet screened the first amended complaint, it is

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premature to determine whether the claims asserted are likely to succeed on the merits. See, e.g.,

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Porter v. Rivas, No. 1:23-cv-00105-ADA-CDB (PC), 2023 WL 4765492, at *1 (E.D. Cal. July

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26, 2023) (“A likelihood of success on the merits determination is not the same as that required

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at screening; at screening, the Court is tasked with determining whether a plaintiff has

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sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The

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merits of the allegations are not tested, for the Court is to consider factual allegations to be true

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for purposes of screening”).

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The Court must also evaluate Plaintiff’s ability to articulate her claims pro se in light of

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the complexity of the legal issues involved. Here, the Court notes that Plaintiff's filings as

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directed by the Court have been responsive to the Court’s directions and reflect Plaintiff is

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logical and articulate. (Cf. Docs. 20 and 21). The Court finds Plaintiff is able to articulate her

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claims in light of their complexity. More specifically, in her as-yet screened first amended

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complaint, Plaintiff thoroughly outlined in a 15-page, single-spaced narrative the relevant

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chronology of events and the theories behind her claims for relief. Neither the claims asserted

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nor the relevant events and transactions are complex. See Bonin v. Vasquez, 999 F.2d 425, 428–

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find the issues in this case “so complex that due process violations will occur absent the presence

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of counsel”); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (explaining that

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“[a]lthough discovery was essential..., the need for such discovery does not necessarily qualify

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the issues involved as ‘complex’”); Headley v Fisher, No. 06 Civ. 6331 (PAC) (KNF), 2008 WL

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2676601, at *2 (S.D.N.Y. July 7, 2008) (“the factual issues concerning Headley’s retaliation and

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due process claims is straightforward and not complex”). Notably too, Plaintiff filed an earlier

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motion for preliminary injunction in this action (Doc. 12), as well as other pleadings for relief

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(Docs. 11, 13). These filings likewise show an ability to articulate her claims pro se. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for

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appointment of counsel, where pleadings demonstrated petitioner had “a good understanding of

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the issues and the ability to present forcefully and coherently his contentions”).

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Next, neither incarceration nor indigency are exceptional circumstances warranting the

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appointment of counsel. See Tri v. Gutierrez, No. 1:22-cv-00836-ADA-SKO (PC), 2023 WL

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6930783, at *4 (E.D. Cal. Oct. 18, 2023); Dijkstra v. Campos, No. 1:21-cv-01223-HBK, 2022

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WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff's indigence does not qualify ‘as an

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exceptional circumstance in a prisoner civil rights case’”); Gipbsin v. Kernan, No. 2:12-cv-0556

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KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 2021) (“Plaintiff's inability to afford

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counsel has no bearing on either his likelihood of success on the merits or his ability to articulate

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his claims pro se”); Callender v. Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3

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(E.D. Cal. Dec. 10, 2018); Montano v. Solomon, No. 2:07-cv-0800 KJN P, 2010 WL 2403389, at

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*2 (E.D. Cal. June 11, 2010).

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The fact an attorney would be better prepared to litigate and try this action does not

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amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113

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F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court

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denied appointment of counsel despite fact that pro se prisoner “may well have fared better-

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particularly in the realm of discovery and the securing of expert testimony”); Courtney v.

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Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020)

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(challenges conducting discovery and preparing for trial “are ordinary for prisoners pursuing

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civil rights claim” and cannot form the basis for appointment of counsel); Thornton v.

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Schwarzenegger, No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D. Cal. Jan. 11, 2011)

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(explaining that “[f]actual disputes and anticipated cross-examination of witnesses do not

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indicate the presence of complex legal issues warranting a finding of exceptional

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circumstances”).

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Also, there is little doubt most pro se litigants “find it difficult to articulate [their]

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claims,” and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331.

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For this reason, in the absence of counsel, federal courts employ procedures which are highly

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protective of a pro se litigant's rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding
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pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se

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in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any

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benefit of the doubt. Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.

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1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his

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claims” in light of the relative complexity of the matter, the “exceptional circumstances” which

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might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer

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v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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In sum, the Court finds no exceptional circumstances warranting the appointment of

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counsel in this matter. Rand, 113 F.3d at 1525

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IV.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for appointment of
counsel (Doc. 26) is DENIED.
And it is FURTHER RECOMMENDED that the Court DENY Plaintiff’s motion for a

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CONCLUSION

preliminary injunction. (Doc. 25).

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These Findings and Recommendations will be 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 fourteen

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(14) days after being served with these Findings and Recommendations, a party may file written

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objections with the Court. The document should be titled, “Objections to Magistrate Judge’s

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Findings and Recommendations.” Parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

March 25, 2024

___________________

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UNITED STATES MAGISTRATE JUDGE

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