United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR COURT ORDER AND APPOINTMENT OF COUNSEL AND STRIKING DISCOVERY REQUEST FROM THE RECORD [ECF
Nos. 27, 28]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Alberto Villescas is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to the parties voluntarily consent to United States magistrate judge jurisdiction, the action was re-assigned to the undersigned on January 5, 2015. (ECF No. 34.)
Now pending before the Court is Plaintiff's motion for court order and appointment of counsel, filed November 24, 2014. On December 2, 2014, the undersigned issued a Findings and Recommendation recommending denial of Plaintiff's request for a court order and appointment of counsel. (ECF No. 28.) However, subsequent to the issuance of the Findings and Recommendations and prior to the adoption of such recommendation, the parties voluntarily consented to magistrate judge jurisdiction and the case was re-assigned to the undersigned on January 5, 2015. Accordingly, pursuant to the 28 U.S.C. § 636(c)(1), the Court hereby issues a ruling on Plaintiff's pending request.
Plaintiff seeks a court order to allow him access to the law library for two to four hours per week. Plaintiff indicates that he has filed inmate grievances and request for modification or accommodation seeking access to the law library. However, Plaintiff has not had access to the law library or copy services for over six weeks. In the alternative, Plaintiff seeks the appointment of counsel to assist him in the continued litigation of this case. The Court construes Plaintiff's request as a motion for a preliminary injunction to grant him access to the law library and/or copy services.
A. Access to the Law Library and/or Copy Services
As previously stated, Plaintiff moves for a court order requiring the California Department of Corrections and Rehabilitation (CDCR) to grant him access to the law library and/or copy services.
Plaintiff's motion includes allegation and a request for a court order against a party who is not named in this action. Although the CDCR is the employer of the defendants in this action, it is not a named party in this action. To the extent Plaintiff seeks injunctive relief against the CDCR, the Court is unable to issue an order against individuals who are not parties to an action pending before it. See Zenith Radio Corp., v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).
A preliminary injunction should not issue unless necessary to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. "A preliminary injunction... is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of right before judgment." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents the exercise of a far reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. V. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). "The proper legal standard for preliminary injunctive relief requires a party to demonstrate that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Stormans, Inc., v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).
Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). However, to state a viable claim for relief, Plaintiff must show that he suffered an actual injury, which requires "actual prejudice to contemplated or existing litigation." Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348) (internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at 655.
A prisoner cannot submit conclusory declarations of injury by claiming his access to the courts has been impeded. Thus, it is not enough for an inmate to show some sort of denial of access without further elaboration. Plaintiff must demonstrate "actual injury" from the denial and/or delay ...