Brooks v. Haviland et al

Filing 65

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/9/11 DENYING 64 Motion to stop transfer and/or for the appointment of counsel. (Dillon, 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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RONALD BROOK,
Plaintiff,

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No. CIV S-09-1364 GEB CKD P

vs.
V. SING, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

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1983. On October 26, 2011, plaintiff filed a motion stating that prison officials plan to transfer

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him to another prison, and seeking a court injunction preventing this transfer until plaintiff’s

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scheduled surgery takes place and/or “this case is settled.” (Dkt. No. 64.) Plaintiff’s motion for

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preliminary injunction has nothing to do with the operative claim in this case, concerning

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defendants’ alleged termination of plaintiff’s job assignment in retaliation for protected First

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Amendment activities. Thus plaintiff’s request for injunctive relief is beyond the scope of the

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case or controversy before this court. See Benyamini v. Manjuano, 2011 WL 4963108 (E.D. Cal.

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Oct. 18, 2011) (“This Court lacks jurisdiction to issue an order requiring prison officials to

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transfer [plaintiff] based on retaliatory acts occurring after this action was filed, because the

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Court does not have such a case or controversy before it in this action. [Citations.]”)
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In the alternative to granting his motion to stop transfer, plaintiff requests the

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appointment of counsel. The United States Supreme Court has ruled that district courts lack

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

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

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may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). In the present case, the court does not find the required exceptional

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circumstances. Plaintiff’s request for the appointment of counsel will therefore be denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s October 26, 2011 motion

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to stop transfer and/or for the appointment of counsel (Dkt. No. 64) is denied.

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Dated: November 9, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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broo1364.31

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