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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES R. O’BRIEN,

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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

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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 is

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plaintiff’s motion for reconsideration (Doc. 27), motion for a temporary restraining order (Doc.

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28), and motion to appoint counsel (Doc. 29).

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On April 20, 2016, the court issued an order for plaintiff to show cause why

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defendants Swingle, Lee and Abdur-Rahman should not be dismissed from this action for failure

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to state a claim. Plaintiff’s motion for reconsideration is his response thereto. As the court

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explained in prior orders, prisoners have no stand-alone due process rights related to the

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administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
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Plaintiff fails to provide any additional facts to show that the doctors had any involvement in his

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dietary care beyond reviewing his inmate grievance. While plaintiff alleges Dr. Abdur-Rahman

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failed to address the issue of whether the food served was in compliance with prison guidelines,

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the undersigned does not find such allegations sufficient to rise to the level of personal

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involvement required under 42 U.S.C. § 1983. Accordingly, these three individuals will be

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dismissed from this action as set forth in the court’s prior orders, but will continue as to the

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remaining two defendants.

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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

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action. As the court already informed plaintiff, where a prisoner is seeking injunctive relief with

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respect to conditions of confinement, the prisoner’s transfer to another prison renders the request

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for injunctive relief moot, unless there is some evidence of an expectation of being transferred

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back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.3d 517,

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519 (9th Cir. 1991) (per curiam). In addition, 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). This action is against officials at High Desert State

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Prison. Plaintiff is requesting the court issue an order directing the action of officials at Folsom

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State Prison. Such a request must be denied as beyond the scope of this action. In addition,

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plaintiff has now been transferred to San Quinton State Prison, and there is no indication that

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plaintiff will be transferred back to High Desert State Prison in the near future. Plaintiff’s

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request for preliminary injunction must be denied.

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Finally, plaintiff has again filed a request for the appointment of counsel. As

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plaintiff has been informed, the United States Supreme Court has ruled that district courts lack

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authority to require counsel to represent indigent prisoners in § 1983 cases. See Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

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court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See
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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of

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both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims

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on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.

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Neither factor is dispositive and both must be viewed together before reaching a decision. See

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id.

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Here, plaintiff requests the appointment of counsel based solely on his inability to

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afford counsel, his limited legal knowledge, and the general difficulties of being a pro se prison

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litigant. There is nothing in his motion to change the determination the court previously made

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that plaintiff does not meet the required exceptional circumstances. As the court previously

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determined, plaintiff appears capable of articulating his claim, the facts of the case are not

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exceptionally complex, and it is not clear at this stage of the proceedings that plaintiff is likely to

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prevail in this action. Thus, his request will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration (Doc. 27) is construed as his

response to the order to show cause and shall be denied as such;

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2.

Defendants Swingle, Lee and Abdur-Rahman are dismissed from this

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3.

Plaintiff’s motion for preliminary injunction (Doc. 28) is denied; and

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4.

Plaintiff’s motion to appoint counsel (Doc. 29) is denied.

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action;

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DATED: December 15, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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