Lal v. Felker et al

Filing 157

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 06/21/12 ordering the 12/19/11 order to show cause 143 is discharged. Plaintiff's 04/24/12 request for appointment of counsel 150 is denied. Also, RECOMMENDING that plaintiff's 02/27/12 motion for a preliminary injunction 146 be denied. MOTION for PRELIMINARY INJUNCTION 146 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AZHAR LAL,
Plaintiff,

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vs.

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No. 2:07-cv-2060 KJM EFB P

FELKER, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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/
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This order addresses the following: (1) defendants’ response to the December

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19, 2011 Order to Show Cause; (2) plaintiff’s February 27, 2012 motion for a preliminary

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injunction; and (3) plaintiff’s April 24, 2012 request for appointment of counsel. For the

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reasons stated below, the order to show cause is discharged and plaintiff’s request for

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appointment of counsel is denied. The court also recommends that plaintiff’s motion for a

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preliminary injunction be denied.

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I.

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The Order to Show Cause Is Discharged
On December 19, 2011, the court ordered defense counsel to show cause why he should

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not be sanctioned for submitting an untrue declaration regarding the existence of certain

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documents concerning prison policies about the distribution of evening “nourishment bags” to

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diabetic inmates. Dckt. No. 143. It is apparent from defense counsel’s response that the

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declaration at issue was not untrue. Dckt. No. 148. Rather, it appears that plaintiff’s requests for

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those documents were ambiguous, and that after plaintiff clarified the nature of those requests,

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defendants provided plaintiff with the requested documents. The order to show cause is

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discharged.

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II.

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Plaintiff’s Motion for A Preliminary Injunction Should Be Denied
On February 27, 2012, plaintiff moved for a preliminary injunction. Dckt. No. 146.

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In the motion, plaintiff purports to bring claims against individuals named Kemp and Hamad,

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neither of whom is a defendant in this action. Plaintiff claims that Kemp, the law librarian at

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California State Prison, Sacramento, is not providing inmates with adequate library time or

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copies, is verbally abusive, and is interfering with plaintiff’s ability to litigate an appeal on a writ

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of habeas corpus. Plaintiff also claims that Hamad is Kemp’s supervisor. As injunctive relief,

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plaintiff requests “that the law library be employed by an employee who has full trianing [sic]

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and authorization to run it.” Dckt. No. 146 at 9.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter,

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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a

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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer

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

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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth

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Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions--that

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is, balancing the elements of the preliminary injunction test, so that a stronger showing of one
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element may offset a weaker showing of another--survives Winter and continues to be valid.

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Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words,

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‘serious questions going to the merits,’ and a hardship balance that tips sharply toward the

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plaintiff can support issuance of an injunction, assuming the other two elements of the Winter

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test are also met.” Id. In cases brought by prisoners involving conditions of confinement, any

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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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Plaintiff has not shown a likelihood of success on the merits, nor has he shown any

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relationship between the preliminary relief sought and the subject matter of this lawsuit. This

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action proceeds on plaintiff’s claims that defendants at High Desert State Prison retaliated

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against plaintiff and interfered with plaintiff’s medical treatment. In contrast, plaintiff’s motion

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for a preliminary injunction involves a completely different issue, that is, plaintiff’s

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dissatisfaction with the law librarian at California State Prison, Sacramento. Apart from

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plaintiff’s unsupported allegations, there is no evidence establishing that plaintiff is likely to

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prevail on his medical treatment claims, or that the injunction sought is necessary to preserve the

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court’s ability to grant effective relief on those claims and that it is the least intrusive means for

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doing so.

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Moreover, the allegations on which plaintiff bases his motion for preliminary injunctive

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relief are properly the subject of another lawsuit and cannot be cannot be adjudicated in this

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action, where they cannot be properly exhausted through the administrative appeals process. See

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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v.

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Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be

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exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV

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S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011); Fed.

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R. Civ. P. 20(a)(2) (multiple defendants may be joined in an action only where the suit regards
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“the same transaction, occurrence, or series of transactions or occurrences” or “any question of

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law or fact common to all defendants”).

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Additionally, prison officials at California State Prison, Sacramento, against whom

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plaintiff seeks injunctive relief, are not a parties to this lawsuit. The court cannot issue an order

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against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). See also Zepeda v. United States

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Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an

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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.”).

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Accordingly, plaintiff’s motion for preliminary injunctive relief, must be denied.
III.

Plaintiff’s Request for Appointment of Counsel is Denied

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Plaintiff requests that the court appoint counsel.1 Dckt. No. 150. District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court

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may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1);

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the

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court must consider the likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there

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are no exceptional circumstances in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The December 19, 2011 order to show cause (Dckt. No. 143) is discharged.

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////

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Although the request was metered for mailing on July 9, 2010, it was not received by the
court until April 24, 2012.
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2. Plaintiff’s April 24, 2012 request for appointment of counsel (Dckt. No. 150) is
denied.
Further, IT IS HEREBY RECOMMENDED that plaintiff’s February 27, 2012 motion for
a preliminary injunction (Dckt. No. 146) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 21, 2012.

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