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Eric Wilton Burton v. M. Mcdonald


November 1, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at High Desert State Prison ("HDSP"), from which he seeks a transfer, both pursuant to the merits of this action, and pursuant to successive motions for preliminary injunctive relief. This action is still at the preliminary stage -- by separate order filed concurrently herewith, the court is directing the United States Marshal to serve process on the named defendants, HDSP Warden McDonald and HDSP Chief Deputy Warden Gower. In the present order, the court addresses plaintiff's second motion for preliminary injunctive relief. (Dkt. No. 11.)

On September 19, 2011, the court denied without prejudice plaintiff's first motion for preliminary injunctive relief. As in that motion, plaintiff now seeks an immediate transfer from HDSP due to the alleged exacerbation of his asthma and other respiratory problems allegedly associated with HDSP's high altitude, as well as the ventilation, smoke and sewer problems specific to plaintiff's cell. In denying the first motion, the court noted that plaintiff had previously filed, then withdrawn, another action in this court that sought similar relief. (See Burton v. McDonald, Case No. 2:10-cv-01281 GGH P.) The court informed plaintiff that it would consider a new motion for preliminary injunctive relief that was premised on circumstances different than those presented in plaintiff's prior action. Plaintiff now responds that he withdrew his prior action because he thought he was going to be transferred from HDSP. Plaintiff further responds that, in addition to the problems challenged in his prior action (alleged effects of high altitude, smoke, and poor ventilation on plaintiff's health), plaintiff now faces the additional problem of being exposed to raw sewage and the resulting "mold and disease causing pathogenic organisms, including microbals" (Dkt. No. 11 at 3); plaintiff states that his efforts to remedy these problems or obtain a cell transfer have been unsuccessful. Plaintiff asserts that his health is so adversely impacted that he fears he "may possibly suffer respiratory arrest, stroke or death . . . ." (Id. at 4.)

The court has previously set forth the considerations to made in assessing the merits of a motion for preliminary injunctive relief. (Dkt. No. 8 at 3-4.)*fn1 In an abundance of caution, with the intent of avoiding irreparable harm, the court will direct a response from the Attorney General to plaintiff's motion for preliminary injunctive relief, and permit plaintiff an opportunity to reply.

The court has also considered plaintiff's request for appointment of counsel. (Dkt. No. 11 at 5.) The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances at this time. Therefore, plaintiff's motion for appointment of counsel will be denied.

For the foregoing reasons, IT IS HEREBY ORDERED that: 1. The Attorney General shall, within twenty-one days, file and serve a response to plaintiff's pending motion for preliminary injunctive relief; plaintiff may, within fourteen days after service of the Attorney General's response, file and serve a reply.

2. Plaintiff's request for appointment of counsel, contained within the pending motion for preliminary injunctive relief, is denied.

3. The Clerk of Court shall serve a copy of this order on Monica Anderson, Senior Assistant Attorney General.


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