Mitchell v. Schwartzenegger et al

Filing 72

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/29/13 ORDERING that defendants motion to strike (dkt. no. 65 ) is GRANTED; Plaintiffs supplemental complaints (dkt. nos. 61 , 69 ) are STRICKEN; Plaintiffs m otion to dispense with the requirement of security (dkt. no. 70 ) is DENIED without prejudice; and Plaintiffs motion for appointment of counsel (dkt. no. 71 ) is DENIED. It is RECOMMMENDED that 68 Motion for Temporary Restraining Order be denied without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(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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JOHN EDWARD MITCHELL,

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Plaintiff,
vs.
J. HAVILAND, et al.,

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ORDER AND

Defendants.

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No. 2:09-cv-3012 JAM KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel. This civil rights action is

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proceeding on plaintiff’s claims that, while he was housed at California State Prison-Solano

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(“CSP-SOL”), defendant Rosario used excessive force on plaintiff on August 5, 2008, and that

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defendants Rosario, Garcia, and McGuire retaliated against plaintiff in early 2009. Plaintiff has

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filed two supplements to his complaint, a motion for temporary restraining order based on the

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supplemental complaint, a motion to dispense with the requirements of security, and a motion for

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appointment of counsel. Defendants filed a motion to strike plaintiff’s supplemental complaint.

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The court will address these motions seriatim, but finds that defendants’ motion to strike is

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granted, that plaintiff’s motion for a temporary restraining order should be denied, and that

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plaintiff’s remaining motions are denied.
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II. Motion to Strike Supplemental Complaint

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Plaintiff is presently housed at the California Substance Abuse Treatment Facility

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in Corcoran (“SATF”). On February 19, 2013, plaintiff filed a supplemental complaint seeking

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injunctive relief based on incidents that occurred at SATF in 2012, and at California State Prison,

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Corcoran (“CSP-COR”) in 2010.1 Both of these prisons are located within the jurisdiction of the

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Fresno Division of this court. Plaintiff claims “an ongoing, illegal practice by the defendants”

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(dkt. No. 61 at 1); however, none of the defendants listed in plaintiff’s supplemental complaint

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are defendants Rosario, Garcia, or McGuire, and none of the allegations pertain to incidents that

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occurred at CSP-SOL.

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In his statement of claim, plaintiff includes allegations pled in the instant action,

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but also includes allegations that are contained in an unidentified district court in case No. 12-

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2048 ABC (SH), in the Ninth Circuit Court of Appeals in 12-56316 (dkt. no. 61 at 3), and in the

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Fresno Division of this court in 1:11-cv-1205 JLT (religious diet claims arising at CSP-COR)

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(dkt. no. 61 at 8).

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Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that:

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A party may amend its pleading once as a matter of course within:

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(A) 21 days after serving it, or

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(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.

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Id.

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Plaintiff has not been granted leave to file a supplemental pleading in this 2009

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case. Plaintiff has previously filed an amended complaint, and is therefore not allowed to amend

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the complaint as of right. Fed. R. Civ. P. 15(a)(1). Plaintiff’s prior efforts to file supplemental

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Plaintiff filed another copy of the supplemental complaint on April 25, 2013. (Dkt. No.

69.)
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pleadings were denied, and plaintiff was informed that he must proceed with one complaint in

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which all claims are pled. (Dkt. No. 15.) Moreover, unrelated claims against different

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defendants belong in different suits, not only to prevent the sort of morass [a multiple claim,

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multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees -

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- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that

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any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants

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not permitted unless both commonality and same transaction requirements are satisfied). As set

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forth above, there is no commonality between the allegations of the proposed supplemental

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complaint and the operative complaint herein. Thus, defendants’ motion to strike plaintiff’s

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supplemental complaint is granted, and plaintiff’s supplemental complaints (dkt. nos. 61 and 69)

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are stricken. Because plaintiff interspersed unrelated claims within his supplemental complaint,

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the court will not order that the supplemental complaint be transferred to the Fresno Division.

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Rather, plaintiff must file separate complaints pertaining to incidents that occurred at CSP-COR

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and SATF, because the allegations do not pertain to the same transaction or share commonality.

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For all of the above reasons, defendants’ motion to strike is granted, and

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plaintiff’s supplemental complaints are stricken.

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III. Motion for Temporary Restraining Order

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Plaintiff seeks a temporary restraining order against J. Beard, Director of the

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California Department of Corrections and Rehabilitation; Warden R. Diaz, SATF; J.D. Lozano,

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Chief of Appeals; C.M. Heck, and Lt. R.K. Williams. Plaintiff asks for a court order enjoining

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defendants from “entering plaintiff’s assigned cell and removing any personal property . . . unless

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it is determined that it is stolen or poses a safety concern for staff or inmates,” “refusing any

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religious special purchase items approved; restraining plaintiff based on unsubstantiated

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confidential information that has not been tested for ‘reliability’ before restraining and/or

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confining plaintiff in administrative segregation;” and keeping certain confidential information
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out of plaintiff’s central file. (Dkt. No. 68 at 1-2.)
“The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009), quoting Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

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A Ninth Circuit panel has found that post-Winter, this circuit’s sliding scale

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approach or “serious questions” test survives “when applied as part of the four-element Winter

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test.” Alliance for Wild Rockies v. Cottrell, 2011 WL 208360, at *7 (9th Cir. Jan. 25, 2011).

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“That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply

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towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also

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shows that there is a likelihood of irreparable injury and that the injunction is in the public

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interest.” Id. In cases brought by prisoners involving conditions of confinement, any preliminary

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injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm

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

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the harm.” 18 U.S.C. § 3626(a)(2).

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The principal purpose of preliminary injunctive relief is to preserve the court’s

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power to render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright

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& Arthur R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in

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addition to demonstrating that he will suffer irreparable harm if the court fails to grant the

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preliminary injunction, plaintiff must show a “fair chance of success on the merits” of his claim.

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Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal

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citation omitted). Implicit in this required showing is that the relief awarded is only temporary

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and there will be a full hearing on the merits of the claims raised in the injunction when the

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action is brought to trial. In addition, as a general rule this court is unable to issue an order

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against individuals who are not parties to a suit pending before it. Zenith Radio Corp. v.
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Hazeltine Research, Inc., 395 U.S. 100 (1969).

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The claims on which plaintiff’s motion is predicated are not included in the

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operative complaint on which this action is proceeding, as set forth above, and does not raise

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allegations against the defendants remaining in this action. For that reason, the claims will not be

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given a hearing on the merits at trial. Thus, the court cannot grant plaintiff injunctive relief. The

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undersigned recommends that plaintiff’s motion for temporary restraining order be denied. In

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light of this recommendation, plaintiff’s motion to dispense with security is denied without

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prejudice.

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IV. Motion for Appointment of Counsel

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Plaintiff requests that the court appoint counsel. District courts lack authority to

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

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 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). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s 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) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has

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failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.

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V. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion to strike (dkt. no. 65) is granted;

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2. Plaintiff’s supplemental complaints (dkt. nos. 61, 69) are stricken;

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3. Plaintiff’s motion to dispense with the requirement of security (dkt. no. 70) is

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denied without prejudice; and

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4. Plaintiff’s motion for appointment of counsel (dkt. no. 71) is denied.

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IT IS RECOMMENDED that plaintiff’s motion for temporary restraining order

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(dkt. no. 68) be denied without prejudice.

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These findings and recommendations are 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)(l). Within fourteen

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days 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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 29, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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