O'Brien v. Foulk, et al.

Filing 31

ORDER signed by Magistrate Judge Craig M. Kellison on 12/15/2016 ORDERING plaintiff's 27 motion for reconsideration is construed as his response to the order to show cause and is DENIED as such. Defendants Swingle, Lee and Abdur-Rahman are DISMISSED from this action. Plaintiff's 28 motion for preliminary injunction is DENIED. Plaintiff's 29 motion to appoint counsel is DENIED. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES R. O’BRIEN, 12 13 14 15 16 17 No. 2:14-cv-0702-CMK-P Plaintiff, vs. ORDER FRED FOULK, et al. Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 19 636(c) and no other party has been served or appeared in the action. Pending before the court is 20 plaintiff’s motion for reconsideration (Doc. 27), motion for a temporary restraining order (Doc. 21 28), and motion to appoint counsel (Doc. 29). 22 On April 20, 2016, the court issued an order for plaintiff to show cause why 23 defendants Swingle, Lee and Abdur-Rahman should not be dismissed from this action for failure 24 to state a claim. Plaintiff’s motion for reconsideration is his response thereto. As the court 25 explained in prior orders, prisoners have no stand-alone due process rights related to the 26 administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 1 1 Plaintiff fails to provide any additional facts to show that the doctors had any involvement in his 2 dietary care beyond reviewing his inmate grievance. While plaintiff alleges Dr. Abdur-Rahman 3 failed to address the issue of whether the food served was in compliance with prison guidelines, 4 the undersigned does not find such allegations sufficient to rise to the level of personal 5 involvement required under 42 U.S.C. § 1983. Accordingly, these three individuals will be 6 dismissed from this action as set forth in the court’s prior orders, but will continue as to the 7 remaining two defendants. 8 9 As to plaintiff’s motion for temporary restraining order, this is plaintiff’s second attempt to have the court issue an order against individuals other than the defendants to this 10 action. As the court already informed plaintiff, where a prisoner is seeking injunctive relief with 11 respect to conditions of confinement, the prisoner’s transfer to another prison renders the request 12 for injunctive relief moot, unless there is some evidence of an expectation of being transferred 13 back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.3d 517, 14 519 (9th Cir. 1991) (per curiam). In addition, this court is unable to issue an order against 15 individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine 16 Research, Inc., 395 U.S. 100, 112 (1969). This action is against officials at High Desert State 17 Prison. Plaintiff is requesting the court issue an order directing the action of officials at Folsom 18 State Prison. Such a request must be denied as beyond the scope of this action. In addition, 19 plaintiff has now been transferred to San Quinton State Prison, and there is no indication that 20 plaintiff will be transferred back to High Desert State Prison in the near future. Plaintiff’s 21 request for preliminary injunction must be denied. 22 Finally, plaintiff has again filed a request for the appointment of counsel. As 23 plaintiff has been informed, the United States Supreme Court has ruled that district courts lack 24 authority to require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. 25 United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the 26 court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See 2 1 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 2 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of 3 both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims 4 on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. 5 Neither factor is dispositive and both must be viewed together before reaching a decision. See 6 id. 7 Here, plaintiff requests the appointment of counsel based solely on his inability to 8 afford counsel, his limited legal knowledge, and the general difficulties of being a pro se prison 9 litigant. There is nothing in his motion to change the determination the court previously made 10 that plaintiff does not meet the required exceptional circumstances. As the court previously 11 determined, plaintiff appears capable of articulating his claim, the facts of the case are not 12 exceptionally complex, and it is not clear at this stage of the proceedings that plaintiff is likely to 13 prevail in this action. Thus, his request will be denied. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. 16 Plaintiff’s motion for reconsideration (Doc. 27) is construed as his response to the order to show cause and shall be denied as such; 17 2. Defendants Swingle, Lee and Abdur-Rahman are dismissed from this 19 3. Plaintiff’s motion for preliminary injunction (Doc. 28) is denied; and 20 4. Plaintiff’s motion to appoint counsel (Doc. 29) is denied. 18 action; 21 22 23 24 DATED: December 15, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 3

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