McElroy v. Adam et al

Filing 49

ORDER DENYING PLAINTIFF'S FIRST REQUEST FOR PRELIMINARY INJUNCTION AND TRO; DENYING HIS REQUESTS FOR APPOINTMENT OF COUNSEL; GRANTING DEFENDANTS' MOTION FOR AN EXTENSION OF TIME TO FILE MOTION FOR SUMMARY JUDGMENT; AND DIRECTING DEFENDAN TSS TO FILE RESPONSE TO SECOND REQUEST FOR PRELIMINARY INJUNCTION AND REPLY TO OPPOSITION by Judge Yvonne Gonzalez Rogers; denying 38 Motion ; denying 44 Motion ; granting 45 Motion for Extension of Time to File; denying 29 Motion ; denying 30 Motion. Plaintiff Replies due by 3/6/2019. Responses to Dkt. no. 37 is due by 2/6/2019. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/9/2019)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

E.J. MCELROY,
Plaintiff,

5
v.
6
7

NANCY ADAM, et al.,
Defendants.

8
9
10

United States District Court
Northern District of California

11

I.

Case No. 17-cv-03348-YGR (PR)
ORDER DENYING PLAINTIFF’S FIRST REQUEST
FOR PRELIMINARY INJUNCTION AND TRO;
DENYING HIS REQUESTS FOR APPOINTMENT
OF COUNSEL; GRANTING DEFENDANTS’
MOTION FOR AN EXTENSION OF TIME TO FILE
MOTION FOR SUMMARY JUDGMENT; AND
DIRECTING DEFENDANTS TO FILE RESPONSE
TO SECOND REQUEST FOR PRELIMINARY
INJUNCTION AND REPLY TO OPPOSITION

INTRODUCTION
Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C.

12

§ 1983 against prison officials at Pelican Bay State Prison (“PBSP”). It seems that Plaintiff claims

13

that he was not provided with adequate medical and dental care at PBSP.

14

Before the Court are Plaintiff’s requests for appointment of counsel (dkts. 38, 44), and his

15

two motions which are construed as requests for a preliminary injunction and temporary

16

restraining order (“TRO”), entitled as follows: “Motion for Specific Conduct Orders Along the

17

Lines of Grievance Log #’s Along With Notice/Motion for Summary Judgment and/or Ex Parte

18

Medical Injunction Accord Stipulation” (hereinafter “First Request for Preliminary Injunction and

19

TRO”) (dkt. 29); and “Motion for TRO Until There Can Be Permanent Enjoining of Department

20

Regulations in ‘Good Order/Conduct’ – Order of Injunctive Relief – in Two Part with Effective

21

Assistance of [Familiar] Counsel . . . .” (hereinafter “Second Request for Preliminary Injunction

22

and TRO”) (dkt. 37). Also before the Court are Defendants’ motion to revoke Plaintiff’s in forma

23

pauperis status under 28 U.S.C. § 1915(g) and dismiss the case without prejudice (dkt. 43), and

24

their motion for an extension of time to file their motion for summary judgment (dkt. 45). The

25

Court notes that Plaintiff filed an opposition to the motion to revoke (albeit late), but Defendants

26

did not file a reply, and therefore that motion is currently not yet submitted. In any event, the

27

Court directs Defendants to file a reply addressing whether Plaintiff meets the imminent danger

28

exception to section 1915(g).

1
2

II.

DISCUSSION
A.

Plaintiff’s Requests for Appointment of Counsel

First, Plaintiff requests for appointment of counsel are DENIED without prejudice for lack
3
of exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); Terrell
4
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
5
Cir. 1986). The decision to request counsel to represent an indigent litigant under section 1915 is
6

within “the sound discretion of the trial court and is granted only in exceptional circumstances.”

7
Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Neither the need for discovery, nor the
8
fact that the pro se litigant would be better served with the assistance of counsel, necessarily
9
qualify the issues involved as complex. See Rand, 113 F.3d at 1525 (9th Cir. 1997). Appointment
10

of counsel for a pro se prisoner is not required, even if the prisoner’s ability to prepare has been

11

United States District Court
Northern District of California

limited. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (upholding denial of
12
13
14

appointment of counsel at trial, despite fact that plaintiff’s ability to prepare for trial limited by
pain from surgery). The Court notes that Plaintiff’s first motion was previously denied. See Dkt.
26. Plaintiff’s previous request for appointment of counsel contained the same factual basis for

15
appointment of counsel as the current requests. Compare Dkt. 21 with Dkts. 38, 44. The Court
16
finds that Plaintiff has not presented any changed circumstances which would warrant the Court to
17
appoint counsel at this time.
18
19

B.

Plaintiff’s Requests for Preliminary Injunction and TRO

Second, as mentioned, Plaintiff has filed two requests for a preliminary injunction and
20

TRO. Dkts. 29, 37. The Court first points out that Plaintiff’s motions are difficult to decipher,

21
but, at this stage in the proceedings, the Court construes them as requests for a preliminary
22

injunction and TRO. The Prisoner Litigation Reform Act of 1995 (“PLRA”) restricts the power of

23
the court to grant prospective relief in any action involving prison conditions. See 18 U.S.C.
24
§ 3626(a); Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). Section 3626(a)(2) applies
25
specifically to preliminary injunctive relief. See 18 U.S.C. § 3626(a)(2). In civil actions with
26
respect to prison conditions, it permits the court to enter a temporary restraining order or
27

preliminary injunction “to the extent otherwise authorized by law” but also requires that such an

28
2

1

order “must be narrowly drawn, extend no further than necessary to correct the harm the court

2

finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.”

3

Id. “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be

4

granted unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v.

5

Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis in original). “A

6

plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,

7

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

8

equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural

9

Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
The Court has reviewed both requests, and it finds that Plaintiff’s First Request for

11

United States District Court
Northern District of California

10

Preliminary Injunction and TRO is more difficult to decipher than his second request. In addition,

12

Plaintiff’s First Request for Preliminary Injunction and TRO seems to address grievances and

13

possible exhaustion issues. Plaintiff has filed a document entitled, “Supplemental Motion in Full

14

Support and Attachment for Satisfaction” (dkt. 30), in which he requests to file numerous

15

grievances as exhibits in support of his First Request for Preliminary Injunction. At this time,

16

however, the action is at an early stage and no motion has been filed addressing whether or not

17

Plaintiff has exhausted his administrative remedies. Therefore, to the extent that the First Request

18

for Preliminary Injunction and TRO addresses issues of exhaustion of his claims, that request is

19

DENIED as unnecessary. Dkt. 29. In turn, Plaintiff’s “Supplemental Motion in Full Support and

20

Attachment for Satisfaction” is also DENIED as unnecessary as Plaintiff need not supplement his

21

motion for exhibits related to exhaustion. Dkt. 30. Meanwhile, it seems that Plaintiff also claims

22

that Defendants have “interfere[d] and cause[d] other injuries to injuries and [affected] medical

23

orders that already exist,” dkt. 29 at 1, thus to the extent that Plaintiff claims that he is being

24

denied certain medical treatments, the Court notes that he has since filed a Second Request for

25

Preliminary Injunction and TRO, which addresses more recent and specific denial of medical

26

treatments. Thus, the Court finds that the First Request for Preliminary Injunction and TRO has

27

been made moot by his Second Request for Preliminary Injunction and TRO. Compare Dkt. 29

28

with Dkt. 37. Thus, the Court DENIES without prejudice Plaintiff’s First Request for Preliminary
3

1

Injunction and TRO because it has been made moot by his Second Request for Preliminary

2

Injunction and TRO. Dkt. 29. The Court will not rule on Plaintiff’s Second Request for

3

Preliminary Injunction and TRO (dkt. 37) at this time. Instead, Defendants’ counsel shall respond

4

to the Second Request for Preliminary Injunction and TRO (dkt. 37), and the parties shall abide by

5

the briefing schedule outlined below.

6

C.

7

Defendants’ Motion for Extension of Time to File Motion for Summary
Judgment

Defendants request for an extension of time to file their motion for summary judgment
8

sixty days after the Court rules on the pending motion to revoke Plaintiff’s in forma pauperis

9
status under 28 U.S.C. § 1915(g) and dismiss the case without prejudice. Such a request is
10
GRANTED. Dkt. 45. If necessary, the parties shall abide by the briefing schedule outlined
11

United States District Court
Northern District of California

below.
12
13

III.

CONCLUSION
For the foregoing reasons, the Court rules as follows:

14
1.

Plaintiff requests for appointment of counsel are DENIED without prejudice for

15
lack of exceptional circumstances. Dkts. 38, 44.
16
2.

To the extent that Plaintiff’s First Request for Preliminary Injunction and TRO

17
addresses issues of exhaustion of his claims, that request is DENIED as unnecessary. Dkt. 29.
18

Thus, Plaintiff’s “Supplemental Motion in Full Support and Attachment for Satisfaction” is also

19
DENIED as unnecessary as Plaintiff need not supplement his motion for exhibits related to
20
exhaustion. Dkt. 30. In addition, to the extent that Plaintiff refers to a denial of medical
21

treatments, the Court DENIES without prejudice Plaintiff’s First Request for Preliminary

22
Injunction and TRO because it has been made moot by his Second Request for Preliminary
23
Injunction and TRO. Dkt. 29.
24
3.
25

The Court will not rule on Plaintiff’s Second Request for Preliminary Injunction

and TRO at this time. Instead, Defendants’ counsel shall respond to the Second Request for

26
Preliminary Injunction and TRO (dkt. 37), and the parties shall abide by the briefing schedule
27
outlined below. As mentioned, Defendants shall also file a reply addressing whether Plaintiff is
28
4

1
2

entitled to the imminent danger exception.
4.

Defendants shall file their reply and response to Plaintiff’s Second Request for

3

Preliminary Injunction and TRO (dkt. 37) no later than twenty-eight (28) days from the date of

4

this Order. The response to the Plaintiff’s Second Request for Preliminary Injunction and TRO

5

shall be supported by adequate factual documentation and shall conform in all respects to the

6

Federal Rules of Civil Procedure, and all papers filed with the Court shall be promptly served on

7

Plaintiff. Defendants are specifically directed to inform the Court of the medical care being

8

offered to Plaintiff. Plaintiff may file a reply to Defendants’ response within twenty-eight (28)

9

days of the date the response is filed. Plaintiff’s reply should be supported by factual

10

United States District Court
Northern District of California

11

documentation and should demonstrate why he satisfies the following standard:
The standard for issuing a TRO is similar to that required for a preliminary injunction. See

12

Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981).

13

To obtain a preliminary injunction, the moving party must show: (1) a likelihood of success on the

14

merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary

15

relief; (3) that the balance of equities tips in the moving party’s favor; and (4) that an injunction is

16

in the public interest. Winter, 555 U.S. at 20. A preliminary injunction is “an extraordinary

17

remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such

18

relief[.]” Id. at 22.

19

5.

The Court GRANTS Defendants’ request for an extension of time to file their

20

motion for summary judgment sixty days after the Court rules on the pending motion to revoke

21

Plaintiff’s in forma pauperis status under 28 U.S.C. § 1915(g) and dismiss the case without

22

prejudice. Dkt. 45. Defendant shall file the motion no later than sixty (60) days of the date of this

23

Court’s ruling on pending motion to revoke Plaintiff’s in forma pauperis status under 28 U.S.C.

24

§ 1915(g) and dismiss the case without prejudice, and only if that motion is denied and the case is

25

not dismissed. Plaintiff’s opposition to the dispositive motion shall be filed with the Court and

26

served on Defendant no later than twenty-eight (28) days after the date that Defendant’s motion is

27

filed. Defendant shall file a reply brief no later than fourteen (14) days after the date Plaintiff’s

28

opposition is filed.
5

1

6.

As explained above, the Court cannot rule on Defendants’ pending motion to

2

revoke Plaintiff’s in forma pauperis status under 28 U.S.C. § 1915(g) and dismiss the case without

3

prejudice (dkt. 43) because Defendants’ reply (including an explanation of whether Plaintiff is

4

entitled to the imminent danger exception) is still outstanding.

5

7.

6

IT IS SO ORDERED.

7
8
9

This Order terminates Docket Nos. 29, 30, 38, 44, and 45.

Dated: January 9, 2019
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6