Valdez v. Cate et al

Filing 17

ORDER signed by Magistrate Judge Craig M. Kellison on 3/29/2013 DENYING 4 Motion for Appointment of Counsel and DENYING 3 Motion for Preliminary Injunction or Motion for TRO. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUBEN VALDEZ,

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No. 2:12-cv-1352-CMK-P

Plaintiff,
vs.

ORDER

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MATTHEW CATE, et al.,

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Defendant.

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/

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c) and no other party has been served or appeared in the action. Pending before the court

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are plaintiff’s motions for counsel (Doc. 4) and preliminary injunction/ temporary restraining

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order (Doc. 3).

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As to plaintiff request for the appointment of counsel, the United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

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In certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff’s complaint demonstrates he has sufficient writing ability and legal

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knowledge to articulate his claim. The facts alleged to support his claim are not overly complex,

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nor do the issues relating to those claim appear to be complex. In addition, it does not appear at

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this time, even given the facts as alleged in the complaint, that there is a likelihood of success on

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the merits. Plaintiff’s request for counsel will therefore be denied at this time.

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As for plaintiff’s motion for preliminary injunction or temporary restraining order,

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the legal principles applicable to requests for injunctive relief, such as a temporary restraining

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order or preliminary injunction, are well established. To prevail, the moving party must show

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that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. Selecky,

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586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct.

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365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing solely

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on the possibility of irreparable harm, such cases are “no longer controlling, or even viable.”

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Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Under

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Winter, the proper test requires a party to demonstrate: (1) he is likely to succeed on the merits;

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(2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of

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hardships tips in his favor; and (4) an injunction is in the public interest. See Stormans, 586 F.3d

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at 1127 (citing Winter, 129 S.Ct. at 374).

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Here, plaintiff claims he is being held in the Secured Housing Unit (SHU) at

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California State Prison Sacramento (CSP-Sac) due to an invalid gang validation, which violated

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his Due Process rights. In his motion for injunctive relief, he argues that being held in the SHU
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is resulting in his loss of liberty, such as loss of privileges and loss of work credits. While being

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held in the SHU may be unpleasant, even more so than being imprisoned in the general

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population, and may result in the denial of certain privileges, plaintiff has not alleged any

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irreparable harm will be incurred as result of his current housing situation. The loss of privileges

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and work credits can be compensated if plaintiff is successful on the merits of this action. There

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is also no indication that the balance of hardship tips in his favor or that an injunction is in the

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public interest. Indeed, if it is determined that plaintiff has been properly validated as a gang

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member, and is properly being housed in the SHU, then releasing plaintiff from the SHU

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prematurely could result in security issues at CSP-Sac. Finally, it does not appear from the facts

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alleged in the complaint, that there is a likelihood of success on the merits. Plaintiff argues that

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he was validated as a gang member based on an incomplete investigation and unreliable

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information, and was not based on his behavior while incarcerated. While these allegations may

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require further proceedings, there does not appear to be any support for plaintiff’s contentions.

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Plaintiff actually sets forth some of the evidence the prison officials used to validate him as a

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gang member, and it would appear at this time to be sufficient. Therefore, he has not

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demonstrated he is likely to succeed on the merits.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s request for the appointment of counsel (Doc. 4) is denied; and

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2.

Plaintiff’s motion for preliminary injunction or temporary restraining order

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(Doc. 3) is denied.

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DATED: March 29, 2013
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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