Hardy v. Davis et al

Filing 131

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/23/20 DENYING 130 Motion to Appoint Counsel. Also, RECOMMENDING that plaintiff's motion for a temporary restraining order 128 be denied. Motion 128 referred to Judge John A. Mendez. Objections due within 30 days.(Plummer, M)

Case 2:13-cv-00726-JAM-DB Document 131 Filed 11/23/20 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRISTIN HARDY,

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No. 2:13-cv-0726 JAM DB P

Plaintiff,

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v.

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C. DAVIS, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Before this court are plaintiff’s motion for a “preliminary injunction / temporary

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restraining order” and motion to appoint counsel. (See ECF Nos. 128, 130). For the reasons

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stated below, the undersigned shall deny plaintiff’s motion to appoint counsel. In addition, it

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shall be recommended that plaintiff’s motion for a temporary restraining order be denied.

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I.

MOTION TO APPOINT COUNSEL

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A.

Applicable Law

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28
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Case 2:13-cv-00726-JAM-DB Document 131 Filed 11/23/20 Page 2 of 4
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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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B.

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In support of plaintiff’s motion for the appointment of counsel, plaintiff states that if the

Discussion

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matter proceeds to trial, he will be at a significant disadvantage. (See ECF No. 130 at 3). He also

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points out that he has never tried a case to a jury. He further contends that given the court’s

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finding that genuine issues of fact exist as to his Fourth Amendment claim, there is a presumption

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that he has demonstrated a likelihood of success on the merits. (See id.).
As stated above, neither plaintiff’s inexperience with the law nor any perceived resulting

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disadvantage constitute exceptional circumstances warranting the appointment of counsel. In

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addition, a finding that a genuine issue of fact exists with respect to a claim has no bearing on

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said claim’s potential success on the merits. Finally, the record clearly shows that to date,

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plaintiff has had no difficulty stating his claims and presenting supporting evidence. (See, e.g.,

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ECF Nos. 1, 30, 47, 48, 67 et seq. (substantive legal documents filed by plaintiff, including, but

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not limited to complaint and motions to compel)). Thus, having considered the Palmer factors in

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the aggregate (see Palmer, 560 F.3d at 970 (citation omitted)), at this time, the court finds that

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plaintiff has failed to meet his burden of demonstrating exceptional circumstances that warrant

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the appointment of counsel.

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II.

MOTION FOR A TEMPORARY RESTRAINING ORDER

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A.

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The legal principles applicable to a request for injunctive relief are well established. To

Applicable Law

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Case 2:13-cv-00726-JAM-DB Document 131 Filed 11/23/20 Page 3 of 4
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prevail, the moving party must show either a likelihood of success on the merits and the

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possibility of irreparable injury, or that serious questions are raised and the balance of hardships

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tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692,

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700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th

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Cir. 1985). The two formulations represent two points on a sliding scale with the focal point

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being the degree of irreparable injury shown. Oakland Tribune, Inc., 762 F.2d at 1376. “Under

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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

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irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

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court need not reach the issue of likelihood of success on the merits. Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary

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

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

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harm.” 18 U.S.C. § 3626(a)(2).

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B.

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Plaintiff requests injunctive relief “concerning arbitrary actions and conditions of

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confinement.” (ECF No. 128 at 1). He claims that he has endured “various forms of retaliation

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similar to the acts described in his sworn complaint” which include, strip searches without

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reasonable suspicion; the confiscation of his property without due process; punitive cell searches

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and the falsification of rule violation reports. (See id. at 2). He contends that the grievances,

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citizen’s complaints and habeas petitions he has filed in an attempt to stop these reprisals have not

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been successful. (See id.). An incident that occurred earlier this year in which he was assaulted

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by two gang members led to charges levied against him and rehousing. As a result, some of his

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property was stolen and he was denied access to the library. (See ECF No. 128 at 3). Plaintiff

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contends that these facts establish that he will suffer irreparable harm should he not receive

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declaratory and injunctive relief. (See id. at 3-4).

Discussion

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The “various forms of retaliation” plaintiff states he has endured during his confinement

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are woefully nondescript. Specifically, they are neither narrowly drawn nor specific enough as

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the law requires. Plaintiff fails to state how alleged strip searches without reasonable suspicion,
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Case 2:13-cv-00726-JAM-DB Document 131 Filed 11/23/20 Page 4 of 4
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property confiscation without due process, or the other incidents plaintiff mentions, constitute

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significant threats of irreparable injury or possible irreparable harm. See Oakland Tribune, Inc.,

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762 F.2d at 1376. Therefore, it shall be recommended that plaintiff’s motion for a temporary

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restraining order be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 130) is DENIED.
IT IS FURTHER RECOMMENDED that plaintiff’s motion for a temporary restraining
order (ECF No. 128) be DENIED.
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 thirty days after

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

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be

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served and filed within fourteen days after service of the objections. The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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

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Dated: November 23, 2020

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/hard0726.48.31

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