The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) DENYING MOTION TO APPOINT COUNSEL WITHOUT PREJUDICE [Doc. No. 10]; (2) DENYING MOTION FOR EMPORARY RESTRAINING ORDER [Doc. No. 12]; (3) SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
On May 13, 2008, Gary B. Moore ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison located in Calipatria, California and proceeding pro se, has filed a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion to Appoint Counsel [Doc. No. 3]. This Court granted Plaintiff's Motion to Proceed IFP, denied Plaintiff's Motion for Appointment of Counsel and sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted. See June 13, 2008 Order at 7-8. Nonetheless, the Court permitted Plaintiff leave to file an Amended Complaint to correct the deficiencies of pleading identified in the Court's Order. Id. On June 27, 2008, Plaintiff filed his First Amended Complaint ("FAC") [Doc. No. 8], a second Motion for Appointment of Counsel [Doc. No. 10], and a Motion for Temporary Restraining Order [Doc. No. 12].
II. MOTION FOR APPOINTMENT OF COUNSEL [DOC.NO.10]
Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court deniesPlaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
III. MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiff has filed a "Motion Temporary Restraining Order " [Doc. No. 12], along with an affidavit in support of his Motion.
Rule 65 of the Federal Rules of Civil Procedure provides that: A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, is any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
Plaintiff's Motion for Temporary Restraining Order does not comply with Rule 65(b)'s important procedural notice requirement. Here, Plaintiff has not demonstrated that his First Amended Complaint, or his Motion have been served on any named Defendant. And while Defendants, as employees of the CDCR, may ultimately be represented by the Attorney General in this matter, there has been no appearance on any Defendant's behalf by the Attorney General at this preliminary stage of the proceedings. Moreover, Plaintiff has not submitted a sworn affidavit or declaration certifying that any efforts have been made to give notice of his Motion or First Amended Complaint to any named Defendant, which is required by Federal Rule of Civil Procedure 65(b).
As noted above, under Federal Rule of Civil Procedure 65(b), a TRO may be granted without notice to the adverse party or that party's attorney only if "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition." FED.R.CIV.P. 65(b). Federal Rule of Civil Procedure 65(b) also requires the Plaintiff to certify to the Court "the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Id. Plaintiff has not provided the Court with any reasoning why Defendants have not been notified of Plaintiff's request for a preliminary injunction.
Plaintiff's Motion does not comply with these elemental procedural requirements of Federal Rule of Civil Procedure 65(b). Thus, for all these reasons, the Court must DENY without prejudice Plaintiff's Motion for Temporary ...