(PC) Harris v. Benkle

Filing 22

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/12/2020 DENYING plaintiff's 18 motion for the appointment of counsel and ORDERING the Clerk to randomly assign a district judge to this case. IT IS RECOMMENDED that plaintiff's 19 motion for injunctive relief be denied. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID D. HARRIS,

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No. 2:20-cv-0880 DB P

Plaintiff,

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v.

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FAYE BENKLE,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendant.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C.

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§1983. Plaintiff alleges defendant was deliberately indifferent to his serious medical needs in

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violation of the Eighth Amendment. Before the court are plaintiff’s motion for a temporary

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restraining order (“TRO”) and motion for the appointment of counsel. For the reasons set forth

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below, this court recommends plaintiff’s motion for a TRO be denied and denies plaintiff’s

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motion for the appointment of counsel.

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BACKGROUND
This case is proceeding on plaintiff’s first amended complaint filed here on June 1, 2020.

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Plaintiff alleges that defendant Benkle failed to provide plaintiff timely medical care despite

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knowing that plaintiff was actively suicidal and had injured himself. On September 16, defendant

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Benkle waived service of the complaint. On September 18, this court stayed these proceedings

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under the court’s Alternative Dispute Resolution program.
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On September 28, plaintiff moved for the appointment of counsel. (ECF No. 18.) In a

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document filed October 1, plaintiff seeks a temporary restraining order. He alleges that medical

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staff and correctional officers have encouraged other inmates to attack him in order to force

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plaintiff to drop this action. (ECF No. 19.) This court ordered defendant’s counsel to contact

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plaintiff’s place of confinement and file a response. (ECF No. 20.) Defendant’s counsel has done

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so. (ECF No. 21.)

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TEMPORARY RESTRAINING ORDER
I. Legal Standards
The legal principles applicable to requests for injunctive relief, such as a temporary

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

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must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v.

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

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555 U.S. 7 (2008)). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing

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on the mere possibility of irreparable harm, such cases are “no longer controlling, or even viable.”

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Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046,1052 (9th Cir. 2009). Under

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Winter, the proper test requires a party to demonstrate: (1) he is likely to succeed on the merits;

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(2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of

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hardships tips in his favor, and (4) an injunction is in the public interest. See Stormans, 586 F.3d

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at 1127 (citing Winter, 555 U.S. at 20). Further, an injunction against individuals not parties to

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an action is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

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100, 110 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from

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litigation in which he is not designated as a party . . . .”).

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It is typically only appropriate to grant preliminary injunctive relief where the relief

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sought is “of the same character as that which may be granted finally” in the lawsuit. De Beers

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Consol. Mines v. United States, 325 U.S. 212, 220 (1945). However, in certain exceptional

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situations, the court may consider injunctive relief in order to permit the case to proceed. The All

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Writs Act, 28 U.S.C. § 1651(a) permits the court to issue writs “necessary or appropriate in aid of

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their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant
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to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v.

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Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized

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the use of the All Writs Act in appropriate circumstances against persons or entities not a party to

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the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977).

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The propriety of a request for injunctive relief hinges on a significant threat of irreparable

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injury that must be imminent in nature. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668,

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674 (9th Cir. 1988); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

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(9th Cir. 2011). “A preliminary injunction is an ‘extraordinary and drastic remedy; it is never

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awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).

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II. Analysis
In his motion, plaintiff states that correctional officers and medical staff have pressured

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him to drop this lawsuit. In addition, he contends that correctional officers have encouraged other

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inmates to attack him and, as result, he has been attacked twice. (ECF No. 19.)

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Defendant’s counsel argues that a TRO should not be granted for the following reasons:

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(1) the court lacks jurisdiction to enjoin anyone besides defendant Benkle; (2) the subject matter

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of plaintiff’s motion is not the same as the subject matter of his complaint; (3) the contentions in

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plaintiff’s motion lack specificity; and (4) plaintiff fails to show he will suffer irreparable harm if

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injunctive relief is not granted at this time. (ECF No. 21.)

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Defendant also argues that plaintiff’s allegations are improbable. Defendant shows that at

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the time plaintiff filed his motion, he was housed in a portion of the prison where it is extremely

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unlikely he would have encountered another inmate without an officer present. In addition,

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defense counsel contacted the officers and medical staff that plaintiff identified in his complaint.

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Each stated that they had not witnessed any assaults on plaintiff and had not encouraged any

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inmate to assault plaintiff. (See ECF No. 21-1.)

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Plaintiff's motion for preliminary injunctive relief should be denied . Plaintiff fails to show

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he is likely to suffer imminent and irreparable harm. He does not identify the inmates who he

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alleges have attacked him, when they have done so, or, specifically, at whose behest. Nor does

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plaintiff show any reason to believe he will be subject to any attacks in the future.
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MOTION FOR APPPOINTMENT OF COUNSEL

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Plaintiff requests the appointment of counsel. He argues that he is inexperienced in legal
proceedings and that this case is complex. (ECF No. 18.)

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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. In the present case, this 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 the appointment of counsel (ECF No. 18) is denied; and

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2. The Clerk of the Court shall randomly assign a district judge to this case;

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Further, IT IS RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No.

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19) be denied.

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These findings and recommendations will be 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, either party may file written object ions

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with the court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” The parties are advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: October 12, 2020

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DLB:9
DLB1/prisoner-civil rights/harr0880.tro fr

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