United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
OF COUNSEL FINDINGS AND RECOMMENDATION REGARDING
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (ECF No.
Barbara A. McAuliffe United States Magistrate Judge.
Christopher Dickson is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
14, 2019, the Court ordered that this case proceed on
Plaintiff's second amended complaint, filed on July 26,
2018, against Defendants G. Gomez, B. Rios, and D. Martinez
for excessive force in violation of the Eighth Amendment,
against Defendants S. Duncan and N. Esparza, for violation of
Plaintiff's due process rights under the Fourteenth
Amendment, and against Defendant Dr. Jeff Sao for deliberate
indifference to serious medical needs in violation of the
Eighth Amendment. (ECF No. 23.)
before the Court is Plaintiff's “motion requesting
court order that CCI Tehachapi have Plaintiff's legal
mail delivered to Plaintiff's cell and Plaintiff be given
assistance to get to the law library in order to litigate and
prosecute this civil complaint or appointment of counsel[,
]” filed on July 3, 2019. (ECF No. 26.) In his filing,
Plaintiff asserts that he is still dealing with injuries
sustained from the events at issue in this action and that he
is unable to get from place to place without assistance of a
cane or a wheelchair. Plaintiff further states that, on May
30, 2019, a nurse and five correctional officers at CCI came
to his cell and confiscated his wood cane, his gel insoles,
and his mobility vest. Then, after Plaintiff was issued
another cane and mobility vest on June 6, 2019, his new cane
and mobility vest were taken by custody/medical staff members
on June 24, 2019. Plaintiff contends that, due to the fact
that he does not have a cane or a wheelchair, the Court
should either appoint counsel to represent him in this action
or order CCI officials to deliver Plaintiff's legal mail
to his cell and give Plaintiff assistance to getting to the
law library, the showers, and/or phone calls.
Court interprets Plaintiff's motion as a motion for
appointment of counsel or, if the Court declines to appoint
counsel, as a motion for a preliminary injunction.
Motion for Appointment of Counsel
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), and the Court cannot require any attorney to
represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1),
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989).
Nevertheless, in certain exceptional circumstances, the Court
may request the voluntary assistance of counsel pursuant to
§ 1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate 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.” Id. (internal quotation marks and
citations omitted). “Neither of these considerations is
dispositive and instead must be viewed together.”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
The burden of demonstrating exceptional circumstances is on
the plaintiff. Id.
circumstances common to most prisoners, such as lack of legal
education, limited law library access, and lack of funds to
hire counsel, do not alone establish the exceptional
circumstances that would warrant granting a request for
voluntary assistance of counsel. Further, while the Court has
ordered this case to proceed on the cognizable claims found
in Plaintiff's second amended complaint, Plaintiff has
failed to establish that he is likely to succeed on the
merits of his claims. Finally, based on a review of the
limited record in this case, it appears that the legal issues
involved in this case are not particularly complex and that
Plaintiff can adequately articulate his claims. Therefore,
the Court finds that Plaintiff has failed to meet his burden
of demonstrating exceptional circumstances warranting the
appointment of counsel at this time. Consequently,
Plaintiff's request for the appointment of counsel is
denied, without prejudice.
Motion for Preliminary Injunction
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted).
“A plaintiff seeking a preliminary injunction must
establish 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.” Id. at 20 (citations omitted). An
injunction may only be awarded upon a clear showing that the
plaintiff is entitled to relief. Id. at 22 (citation
courts are courts of limited jurisdiction and in considering
a request for preliminary injunctive relief, the Court is
bound by the requirement that as a preliminary matter, it
have before it an actual case or controversy. City of
L.A. v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge
Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 471 (1982). If the Court does
not have an actual case or controversy before it, it has no
power to hear the matter in question. Id. Requests
for prospective relief are further limited by 18 U.S.C.
§ 3626(a)(1)(A) of the Prison Litigation Reform Act,
which requires that the Court find the “relief [sought]
is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
the pendency of this action does not give the Court
jurisdiction over prison officials in general. Summers v.
Earth Island Inst., 555 U.S. 488, 491-93 (2009);
Mayfield v. United States, 599 F.3d 964, 969 (9th
Cir. 2010). The Court's jurisdiction is limited to the
parties in this action and to the viable legal claims upon
which this action is proceeding. Summers, 555 U.S.
at 491-93; Mayfield, 599 F.3d at 969; see Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344, 350 (1999) (noting that one “becomes a party
officially, and is required to take action in ...