Henderson v. Unknown

Filing 25

ORDER signed by Magistrate Judge Deborah Barnes on 3/5/2019 DENYING plaintiff's 21 motion for preliminary injunction and a temporary restraining order; DENYING plaintiff's 22 motion for preliminary injunction and a temporary restraining order; and DENYING plaintiff's 24 motion to appoint counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM MARTIN HENDERSON,

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Plaintiff,

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No. 2:17-cv-2121 DB P

v.

ORDER

CDCR DIRECTOR, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 7, 2018, plaintiff filed a second motion for a preliminary injunction and

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temporary restraining order. (ECF No. 21). On May 11, 2018, plaintiff filed a third motion for a

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preliminary injunction and temporary restraining order. (ECF No. 22). On June 15, 2018,

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plaintiff filed a second motion to appoint counsel. (ECF No. 24). For the reasons stated herein,

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the court will deny all three motions.

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I.

PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

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MOTIONS

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Plaintiff’s requests for temporary restraining orders are insufficient under Local Rule

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231(c). Therefore, the requests will be construed as motions for preliminary injunctions.
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A.

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Plaintiff’s second motion for a preliminary injunction and a temporary restraining order,

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filed May 7, 2018, is eighty-four pages in length. (See ECF No. 21). In it, plaintiff asks that the

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California Department of Corrections and Rehabilitation (“CDCR”) director, a named defendant,

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be ordered to arrange for him to be “single celled in a truly protective custody type housing in a

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non-disciplinary setting where inmates have no physical access to [him]” and that this be done as

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soon as possible. (See ECF No. 21 at 2) (brackets added). Plaintiff also asks that the CDCR

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director arrange for him to be housed at a facility where he has never been housed before that is

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within this court’s jurisdiction and that is as close to Sacramento as possible. (See ECF No. 21 at

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Preliminary Injunction Motion Filed May 7, 2018

2).

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In support of these assertions, plaintiff provides examples over the years regarding his

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abuse at the hands of other inmates and prison personnel. (See ECF No. 21 at 3-13). He

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contends that a grant of these motions is appropriate because it will be proven at trial that

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defendants have violated his rights and that they will continue to do so if the motions are not

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granted on an emergency basis. (See ECF No. 21 at 2).

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B.

Preliminary Injunction Motion Filed May 11, 2018

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Plaintiff’s third motion for a preliminary injunction and a temporary restraining order,

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filed May 11, 2018, is thirty-five pages in length. (See ECF No. 22). In it, plaintiff asks that

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federal agents or some state agency other than CDCR or DSH be permitted to take over his

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custody so that he can be placed into a witness protection program. (See ECF No. 22 at 8). In

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addition, he requests that he be placed in a non-disciplinary single cell. He also requests that he

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be granted compassionate release. (See ECF No. 22 at 8). In support of these requests, plaintiff

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claims, amongst other things, that a classification change indicates that defendants “plan to

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continue to place [his] life and safety in present danger.” (See ECF No. 22 at 8-9) (brackets

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added).

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C.

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

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Discussion

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, 762 F.2d at 1376. “Under any

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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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Neither of plaintiff’s preliminary injunction and temporary restraining order motions meet

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the standards necessary for a grant of them. Specifically, neither of them show either a likelihood

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of success on the merits and the possibility of irreparable injury. (See generally ECF Nos. 21,

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22). Nor does either raise serious questions and show that the balance of hardships plaintiff is

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experiencing sharply tip in his favor. (See generally ECF Nos. 21, 22). Instead, both are

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narrative in nature: sometimes detailing plaintiff’s health history and how he is feeling, and

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sometimes detailing assaults plaintiff has experienced and his personal belief that different

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housing is necessary because he may be harmed again. (See generally ECF Nos. 21, 22).

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Additionally, plaintiff fails to identify particular defendants or particular upcoming events that

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could lead to irreparable injury to him. For these reasons, both of these motions will be denied.

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II.

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MOTION TO APPOINT COUNSEL
Plaintiff’s second motion for the appointment of counsel, filed June 15, 2018, is actually a

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copy of a two-page letter it appears he has sent to local attorneys in order to try to obtain legal

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representation. (See ECF No. 24). Plaintiff states in part that he needs representation because:

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(1) defendants employed at the prison have been retaliating against him because they know he has

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a case; (2) he has been denied access to the law library and the courts by prison staff, and (3) he
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needs to obtain a court order so that he can be housed safely given that he is on at least five prison

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gang hit lists. (See ECF No 24 at 1-2).

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.
A review of plaintiff’s preliminary injunction motions as well as of the instant motion to

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appoint counsel indicates that thus far, plaintiff has been able to articulate his claims in a

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somewhat clear manner. (See generally ECF Nos. 21, 22, 24). In addition, the fact that plaintiff

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has had limited access to the prison law library is not persuasive. Furthermore, to date, plaintiff’s

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access to the courts does not appear to have been hampered much given that he has been able to

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file multiple, duplicate motions in this court without apparent incident. (See generally ECF Nos.

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1, 3, 6, 8, 9, 10, 11, 12, 17, 18, 19, 21, 22, 23, 24) (documents filed by plaintiff in this action).

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For these reasons, the court does not find the required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for a preliminary injunction and a temporary restraining order, filed

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May 7, 2018 (ECF No. 21), is DENIED;
2. Plaintiff’s motion for a preliminary injunction and a temporary restraining order, filed

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May 11, 2018 (ECF No. 22), is DENIED, and

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3. Plaintiff’s motion to appoint counsel, filed June 15, 2018 (ECF No. 24), is DENIED.
Dated: March 5, 2019

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/hend2121.48(3).mtac(2)

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