Byrd v. Lynn et al

Filing 43

ORDER signed by Magistrate Judge Dale A. Drozd on 3/26/12 ORDERING that Plaintiffs various motions for leave to supplement his complaint 26 , 28 , 30 , 34 and 37 are denied without prejudice to raising the proposed new causes of action in a se parate civil action; Plaintiffs motions for a temporary restraining order and/or preliminary injunctive relief 27 & 29 are denied as moot; Plaintiffs motion for a temporary restraining order and/or preliminary injunctive relief 42 is denied without prejudice; and Plaintiffs motion for appointment of counsel 31 is denied. (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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HOSEA BYRD,

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Plaintiff,

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vs.

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No. CIV S-10-0839 KJM DAD P

A. LYNN, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

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filed pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions to

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supplement his amended complaint, for a temporary restraining order and/or preliminary

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injunctive relief, and for appointment of counsel.

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BACKGROUND
Plaintiff is proceeding on his first amended complaint. Therein he alleges that he

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was transferred to High Desert State Prison on July 23, 2009, and shortly thereafter filed an

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administrative grievance because he believed the transfer was retaliatory. According to plaintiff,

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defendant Statti screened-out plaintiff’s grievance because plaintiff had failed to attach the

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appropriate documents to the grievance. Although plaintiff attempted to re-file the grievance

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several times, defendant Statti continued to reject it. Plaintiff then sent a letter directly to the
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Warden McDonald’s office complaining about defendant Statti screening out his grievances, but

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the warden replied that plaintiff could not send inmate complaints directly to his office and was

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required to use the appropriate chain of command established by the inmate appeals process.

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(Am. Compl. 4, 8-10 & Ex. G.)

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Subsequently, plaintiff appeared before defendants Lynn, Kelly, Hale, and Kahn

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for a classification hearing. At that hearing, the defendants assigned plaintiff to work privilege

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group C, despite the fact that plaintiff had not been charged with a serious prison rules violation

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in over four months. Plaintiff filed an administrative grievance against defendant Lynn for

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improperly classifying him in work privilege group C. According to plaintiff, defendant Lynn

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then altered documents in plaintiff’s central file to make it appear as if he had a history of

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receiving security housing unit terms. (Am. Compl. 4, 7 & Ex. C.)

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After screening plaintiff’s amended complaint, the court determined that liberally

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construed plaintiff’s allegations appeared to state a cognizable claim for retaliation against

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defendant Lynn. In addition, however, the court determined that plaintiff’s allegations failed to

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state a cognizable claim under the Due Process Clause against defendants Lynn, Kelly, Hale,

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Kahn, and Martinez. The court also determined that plaintiff’s allegations failed to state a

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cognizable claim against defendant Statti for screening out plaintiff’s administrative grievances

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and against defendant McDonald for failing to correct the actions of his subordinates.

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Accordingly, the undersigned issued findings and recommendations, recommending that this

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action proceed only on plaintiff’s First Amendment retaliation claim against defendant Lynn and

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that plaintiff’s remaining claims against defendants Lynn, Kelly, Hale, Kahn, Martinez, Statti,

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and McDonald be dismissed for failure to state a claim. (See Doc. No. 18.)

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As noted above, since those findings and recommendations were issued, plaintiff

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has filed several motions to supplement his amended complaint, for a temporary restraining order

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and/or preliminary injunctive relief, and for appointment of counsel.

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DISCUSSION

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First, the court will address plaintiff’s motions to supplement his amended

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complaint. In his various motions, plaintiff seeks leave to supplement his amended complaint

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with allegations against numerous proposed new defendants, including Captain Chapman, Chief

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Deputy Warden Davey, Captain Peddicord, Dr. Hull, Correctional Counselor Hale, Correctional

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Counselor Wagner, Correctional Counselor Sweeten, Correctional Officer Leauge, Correctional

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Officer Baumiller, Correctional Officer Lee, and others. Plaintiff also seeks to supplement his

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current retaliation allegations with new allegations related to various alleged incidents and

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conditions including a rules violation report he received for battery on another inmate and a loss

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of 180 days of good-time credit, filthy cell conditions, an improper double-cell assignment, a

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denial of religious vegetarian diet meals, and a denial of access to courts.

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Under Federal Rule of Civil Procedure Rule 15(d), “the court may, on just terms,

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permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event

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that happened after the date of the pleading to be supplemented.” See Fed. R. Civ. P. 15(d).

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“While leave to permit supplemental pleading is favored, it cannot be used to introduce a

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separate, distinct and new cause of action.” Planned Parenthood of Southern Arizona v. Neely,

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130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks and citation omitted). See also

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Contreraz v. Stockbridge, No. 1:06-cv-01817 LJO SKO PC, 2012 WL 396503 at *1 (E.D. Cal.

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Feb. 7, 2012) (denying plaintiff’s motion to file supplemental complaint because his proposed

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supplement allegations gave rise to a new causes of action); Gonzales v. Mason, No. C 07-180 SI

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(pr), 2008 WL 2079195 at *2 (N.D. Cal. May 15, 2008) (denying plaintiff’s motion to file

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supplemental complaint because the proposed supplement included different defendants and new

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claims).

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Here, plaintiff’s proposed supplemental complaints should be the subject of new

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and separate causes of action from that presented in this action. Specifically, plaintiff’s proposed

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supplemental claims are separate and distinct from his current claim of unlawful retaliation
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against defendant Lynn and give rise to new causes of action against different defendants. In

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addition, allowing plaintiff to pursue his proposed supplemental claims would not promote

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judicial efficiency, the goal of Rule 15(d). See Planned Parenthood, 130 F.3d at 402. See also

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Fed. R. Civ. P. 18(a) (“A party asserting a claim . . . may join, [] as independent or as alternative

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claims, as many claims . . . as the party has against an opposing party”); Fed. R. Civ. P. 20(a)(2)

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(joinder of defendants not permitted unless both commonality and same transaction requirements

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are satisfied). Finally, there are no “technical obstacles” to plaintiff bringing a separate action

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against the new defendants listed in his proposed supplemental complaints. See Planned

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Parenthood, 130 F.3d at 402. Accordingly, the court will deny plaintiff’s motions for leave to

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file a supplemental complaint without prejudice to raising the proposed new causes of action in a

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separate action.

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Next, the court turns to plaintiff’s motions for a temporary restraining order and/or

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preliminary injunctive relief. Plaintiff is advised that when an inmate seeks injunctive or

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declaratory relief concerning the prison where he is incarcerated, his claims for such relief

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become moot when he is no longer subjected to those conditions. See Weinstein v. Bradford,

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423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). Plaintiff has

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notified the court that he has been transferred from High Desert State Prison to the California

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Correctional Institution. (See Doc. No. 39.) Plaintiff filed two of his motions for a temporary

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restraining order and/or preliminary injunctive relief while he was still incarcerated at High

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Desert State Prison. Accordingly, the court will deny those motions as moot.

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As to the motion that plaintiff filed after his arrival at the California Correctional

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Institution, the court will deny that motion without prejudice. In plaintiff’s motion, plaintiff

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explains that on January 10, 2012, a law library clerk notified him that he had a court deadline

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when in fact he did not. Based on this alleged error by the clerk, plaintiff seeks a court order

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prohibiting “prison officials” from interfering with his access to the courts. As an initial matter,

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plaintiff’s motion is defective because it does not comply with the Local Rules of Court. The
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court will not entertain any future request or motion for injunctive relief that is not supported by

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(1) a declaration under penalty of perjury on the question of irreparable injury, (2) a

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memorandum of points and authorities addressing all legal issues raised by the motion, and (3)

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evidence of notice to all persons who would be affected by the order sought. See Local Rule

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231. In addition, plaintiff is advised that he may only seek injunctive relief against individuals

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who are named as defendants in this action. In plaintiff’s pending motion for injunctive relief, he

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seeks an order against “prison officials.” This court is unable to issue an order against

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

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Research, Inc., 395 U.S. 100, 112 (1969); Zepeda v. United States Immigration Service, 753 F.2d

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719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction

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

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the rights of persons not before the court.”). Finally, plaintiff’s motion fails to state a claim for

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relief. It is well established that a plaintiff must demonstrate an “actual injury” to state a

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cognizable claim for denial of access to the courts. Plaintiff has not alleged that he suffered any

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actual injury here as a result of the clerk’s alleged error. See Lewis v. Casey, 518 U.S. 343,

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351-52 (1996); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); see also Stormans v.

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Selecky, 571 F.3d 960, 978 (9th Cir. 2009) (“The proper legal standard for preliminary injunctive

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relief requires a party to demonstrate ‘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.’”) (quoting Winter v. Natural Res. Def.

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Council, 555 U.S. 7, 20 (2008)). Accordingly, plaintiff’s motion for a temporary restraining

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order and/or preliminary injunctive relief will be denied without prejudice.

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Finally, the court will address plaintiff’s motion for appointment of counsel. The

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United States Supreme Court has ruled that district courts lack authority to require counsel to

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

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298 (1989). In certain exceptional circumstances, the district court may request the voluntary
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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s various motions for leave to supplement his complaint (Doc. Nos.

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26, 28, 30, 34 & 37) are denied without prejudice to raising the proposed new causes of action in

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a separate civil action;

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2. Plaintiff’s motions for a temporary restraining order and/or preliminary
injunctive relief (Doc. Nos. 27 & 29) are denied as moot;

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3. Plaintiff’s motion for a temporary restraining order and/or preliminary
injunctive relief (Doc. No. 42) is denied without prejudice; and

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4. Plaintiff’s motion for appointment of counsel (Doc. No. 31) is denied.
DATED: March 26, 2012.

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