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Govind v. Adams

December 20, 2006


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


On October 2, 2006, Plaintiff, proceeding pro se, filed a notice of appeal, seeking interlocutory review of most of this Court's decisions. While that appeal was pending, Plaintiff on November 2, 2006 filed a motion to appoint counsel, and on November 8, filed a motion for a temporary restraining order. On November 15, the Court issued an order dismissing these motions for lack of jurisdiction. On November 28, the U.S. Court of Appeals dismissed Plaintiff's appeal.

Plaintiff has now filed an ex parte motion seeking reconsideration of this Court's denial of his previous motions. The Court construes this to be a renewed motion for appointment of counsel and for injunctive relief and not a request that the Court review its previous decision. Plaintiff has requested a state court trial transcript and a speedy trial. Plaintiff also mentions his dissatisfaction with opposing counsel's failure to call him in connection with the pretrial conference.

Appointment of Counsel

Plaintiff previously requested appointed counsel in an ex parte motion filed June 9, 2005. This motion was denied by an order issued by Magistrate Judge Ruben Brooks, issued September 15, 2005. Neither the facts nor the relevant law has changed in any relevant respect since that decision.

Plaintiff contends that because his filings are not always helpful to the Court, counsel should be appointed to represent him. "[I]t is well-established that there is generally no constitutional right to counsel in civil cases." U.S. v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). Pursuant to 28 U.S.C. § 1915(e)(1), however, in "exceptional circumstances" the Court may request an attorney to represent any person unable to afford counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Ninth Circuit has further explained:

A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Neither of these factors is dispositive and both must be viewed together before reaching a decision.

Id. (citations and internal quotation marks omitted).

Examining these two factors, the Court reaches the same conclusion that Judge Brooks reached previously. Two claims remain to be tried: Plaintiff's claim that Defendant Sims was deliberately indifferent to his serious medical needs caused by asthma; and Plaintiff's claim that Defendant Sims incited other prisoners to attack Plaintiff by spreading rumors that Plaintiff was associated with Osama bin Laden, the Taliban, and the 9/11 attacks. These are not particularly complex legal claims, and Plaintiff is well acquainted with the facts on which they are based. The Court finds his ability to articulate his claims remains adequate. While Plaintiff's claims are supported by evidence, the evidence is not overwhelming. In view of the Court's analysis of these two factors, the Court determines that no "extraordinary circumstances" exist that would support appointment of counsel.

Motion for Injunctive Relief

Plaintiff seeks preliminary injunctive relief against certain prison officials at High Desert State Prison, where he is now incarcerated. He seeks better library facilities, protection from retaliation, assurance that his mail will be secure, and a transfer away from High Desert State Prison.

Defendant Adams was dismissed as a party on August 29, 2006, so at this point only Defendant Sims remains. The motion does not mention Defendant Sims. According to information Plaintiff has provided to the Court, Defendant Sims is not employed at High Desert State Prison. Defendant Sims therefore has no clear connection with any of the injunctive relief Plaintiff is seeking.

With regard to the transfer and other claims, no party with the power to transfer Plaintiff is a party to this action. With limited exceptions not applicable to the transfer Plaintiff seeks, this Court lacks authority to issue an injunction directed at an entity that is not a party before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).

The Court's ability to grant prospective injunctive relief is constrained where prison conditions are at issue. See Gilmore v. People of the State of California, 220 F.3d 987, 998--99 (9th Cir. 2000) (citing 18 U.S.C. ยง 3626). The Court can grant injunctive relief only if it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to ...

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