United States District Court, S.D. California
ORDER: (1) DENYING MOTIONS FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION; (2) DENYING MOTION TO
APPOINT COUNSEL; AND (3) DISMISSING COMPLAINT PURSUANT TO 28
U.S.C. § 1915A (ECF Nos. 2, 3, 4)
Janis L. Sammartino United States District Judge
Manuel Antonio Gonzalez, currently incarcerated at Richard J.
Donovan Correctional Facility (“RJD”) in San
Diego, California, is proceeding pro se in this civil action
filed pursuant to 42 U.S.C. § 1983. ECF No. 1
(“Compl.”). Plaintiff has filed a Motion to
Appoint Counsel (ECF No. 2), a Motion for Preliminary
Injunction (ECF No. 3), and a Motion for a Temporary
Restraining Order (“TRO”) (ECF No. 4). Plaintiff
prepaid the $400 filing fee required by 28 U.S.C. §
1914(a) to commence a civil action at the time he submitted
his Complaint. See ECF No. 5. The Court will first
consider Plaintiff's Motion to Appoint Counsel, then
conduct the required sua sponte screening pursuant to 28
U.S.C. § 1915A, and finally turn to Plaintiff's
Motions for TRO and Preliminary Injunction.
TO APPOINT COUNSEL
requests that the Court appoint him counsel in this matter.
See ECF No. 2. There is no constitutional right to
counsel in a civil case. See Lassiter v. Dept. of Soc.
Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr.
Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A
district court may at its discretion appoint counsel if
“exceptional circumstances” exist. Terrell v.
Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991). Exceptional
circumstances exist where there is cumulative showing of both
a likelihood of success on the merits and a demonstrated
inability of the pro se litigant to articulate his claims in
light of their legal complexity. Id.
nothing in the record at this stage in the case demands that
the Court exercise its limited discretion to request that an
attorney represent Plaintiff pro bono pursuant to 28 U.S.C.
§ 1915(e)(1). As currently pled, Plaintiff's
Complaint demonstrates that, while he may not be formally
trained in law, he nevertheless is capable of articulating
the facts and circumstances relevant to his claims, which are
typical and not legally “complex.”
Agyeman, 390 F.3d at 1103. Moreover, for the reasons
discussed below, Plaintiff has yet to show he is likely to
succeed on the merits of his claims. Therefore, the Court
DENIES Plaintiff's Motion for
Appointment of Counsel (ECF No. 2).
SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A
was incarcerated at the time he filed this action. See
generally Compl. “As used in this section, the
term ‘prisoner' means any person incarcerated or
detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms or conditions of parole, probation,
pretrial release, or diversionary program.” 42 U.S.C.
§ 1915A(c); see also Olivas v. Nev. ex rel. Dept. of
Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing 28
U.S.C. § 1915(h), 1915A(c); 42 U.S.C. § 1997e(h)).
1915A “mandates early review-‘before docketing 
or  as soon as practicable after docketing'-for all
complaints ‘in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.'” Chavez v. Robinson, 817 F.3d
1162, 1168 (9th Cir. 2016). The mandatory screening
provisions of section 1915A apply to all prisoners--no matter
what their fee status is--who bring suit against a
governmental entity, officer, or employee. See,
e.g., Resnick v. Hayes, 213 F.3d 443, 446-47
(9th Cir. 2000). “On review, the court shall . . .
dismiss the complaint, or any portion of the complaint,
” if it “(1) is frivolous, malicious, or fails to
state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such
relief.” Olivas, 856 F.3d at 1283 (quoting 28
U.S.C. § 1915A(b)). “The purpose of § 1915A
is to ‘ensure that the targets of frivolous or
malicious suits need not bear the expense of
responding.'” Nordstrom v. Ryan, 762 F.3d
903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
1915A “incorporates the familiar standard applied in
the context of failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a
complaint “contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted); Wilhelm,
680 F.3d at 1121. Detailed factual allegations are not
required, but “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. The
“mere possibility of misconduct” or
“unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009).
alleges that he was “subjected” to a “past
head injury” on March 18, 2014. Compl. at 13. Plaintiff
alleges that this injury resulted in “concussion,
post-concussion syndrome, long term memory loss, short term
memory loss, off balance, loss of coordination, ” and
“constant pressure in head.” Id. He
further alleges that the “constant pressure in
head” later led to “high blood pressure in eyes,
damaging eye sight, irreparable nerve damage” which
resulted in Plaintiff having to “take prescription eye
drops” for the rest of his life. Id.
alleges that Defendant Dr. Malhotra, a neurologist,
“never ordered [an] EMG test for nerve damage”
resulting in “nerve damage and optic nerve
damage.” Id. Plaintiff claims that this damage
to his eyes was “discovered by
neuro-ophthalmologist” in February of 2019.
Id. Plaintiff alleges Dr. Malhotra “was trying
to cover up [Plaintiff's] injuries” because he
failed to provide “adequate medical care.”
Id. at 14.
alleges Defendant Dr. Zhang, his primary care provider,
denied him adequate medical care when he purportedly failed
to “re-schedule [a] return follow up appointment with
[a] ‘neuro ophthalmologist.'” Id. at
16. The neuro ophthalmologist had “ordered [a]
‘return appointment follow up' . . . specifically
to monitor high blood pressure in eyes and the effects of
prescription eye drops, and monitor damage eyesight.”
alleges that when he was examined by Dr. Zhang, Dr. Zhang
“noted [that the] specialist report incorrectly stated
glaucoma.” Id. Plaintiff alleges that although
he had not been diagnosed with glaucoma, Dr. Zhang
“refused to document Plaintiff's request to
document the report was incorrect.” Id.
Plaintiff alleges Dr. Zhang's refusal to schedule a
follow up with the specialist caused Plaintiff to be
“subjected to blindness” and “losing
eyesight without [a] specialist monitoring [the] high blood
pressure in eyes” or receiving “prescription eye
drops.” Id. at 17.
also alleges that Defendants “deliberately
placed” him in the “wrong classification of
‘double cell clearance' when ‘single
cell' was correct classification.” Id. at
18. Plaintiff alleges that he was “denied the right to
appeal ICC committee decision.” Id. Plaintiff
asserts that at his “initial review committee”
when he arrived at RJD, he “explained” that if he
Defendants housed him in a double cell, “any inmate
[who] was placed in cell . . . would be assaulted in
Plaintiff's self-defense.” Id. at 19.
Based on his explanation, Plaintiff maintains that the
classification committee should have scheduled a
“separate single cell review committee.”
Id. Plaintiff claims his correctional counselor,
Medina, “never provided” ...