Brown v. Beard et al

Filing 19

ORDER signed by Magistrate Judge Craig M. Kellison on 1/31/2018 DENYING plaintiff's 13 motion for preliminary injunction and plaintiff's 17 motion for the appointment of counsel. (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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LANCE L. BROWN,

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No. 2:15-cv-0370-CMK-P

Plaintiff,

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vs.

ORDER

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JEFFREY BEARD, et al.,

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Defendant.
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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. Pending before the court is plaintiff’s motion for a preliminary injunction (Doc.

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13).

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). However, where a

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prisoner is seeking injunctive relief with respect to conditions of confinement, the prisoner’s

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transfer to another prison renders the request for injunctive relief moot, unless there is some

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evidence of an expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-

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03 (1975); Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam).

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Here, plaintiff is requesting the court order that he be transferred to a CDCR

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medical facility. The court notes that after filing the pending motion, plaintiff was transferred to

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California Medical Facility. As such, his request is moot as he has already received the action

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requested in his motion.

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Plaintiff has also filed a motion for appointment of counsel (Doc. 17). The United

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

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

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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

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“exceptional circumstances” requires an evaluation of both the likelihood of success on the

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

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of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both

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must be 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 indicates he has both mental and physical ailments. He also states that

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he was previously receiving assistance from an inmate at his prior institution, but has been

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transferred and is no longer receiving that assistance. However, petitioner’s motion and exhibits
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indicate that he is able to understand these proceedings and articulate his claims sufficiently

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without the assistance he was previously receiving. This case does involve multiple defendants

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related to plaintiff’s health care, but does not appear to be particularly complex at this time. At

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this stage of the proceedings, it is not clear whether he has any likelihood of success on the

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merits. His request will therefore be denied, but without prejudice to raising the issue later in

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these proceedings.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for preliminary injunction (Doc. 13) is denied; and

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2.

Plaintiff’s motion for appointment of counsel (Doc. 17) is denied.

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DATED: January 31, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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