United States District Court, D. Montana, Helena Division
JEROMEY G. JONES, Plaintiff,
MONTANA STATE PRISON and MS. DALY, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Jeromey Jones, a prisoner proceeding without counsel, has
filed a motion for appointment of counsel (Doc. 7), a
declaration (Doc. 8), and a proposed order for temporary
restraining order (Doc. 8-1.) The motion for appointment of
counsel will be denied. Mr. Jones's other filings as
construed as a motion for temporary restraining order should
Motion for Appointment of Counsel
including incarcerated prisoners, has a constitutional right
to be represented by appointed counsel when they choose to
bring a civil lawsuit under 42 U.S.C. § 1983. Rand
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
withdrawn on other grounds, 154 F.3d 952, 962 (9th Cir.
1998). Unlike criminal cases, the statute that applies does
not give a court the power to simply appoint an attorney. 28
U.S.C. § 1915 only allows the Court to
“request” counsel to represent a litigant who is
proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). A
judge cannot order a lawyer to represent a plaintiff in a
§ 1983 lawsuit-a judge can merely request a lawyer to do
so. Mallard v. United States Dist. Court, 490 U.S.
296, 310 (1989). Further, a judge may only request counsel
for an indigent Plaintiff under “exceptional
circumstances.” 28 U.S.C. § 1915(e)(1);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
A finding of exceptional circumstances requires an evaluation
of both ‘the likelihood of success on the merits and
the ability of the petitioner to articulate his claims pro se
in light of the complexity of the legal issues involved.'
Neither of these factors is dispositive and both must be
viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
Jones argues he is unable to afford counsel and his
imprisonment will greatly limit his ability to litigate.
(Doc. 7.) Many indigent plaintiffs might fare better if
represented by counsel, particularly in more complex areas
such as discovery and the securing of expert testimony.
However, this is not the test. Rand, 113 F.3d at 1525.
Plaintiffs representing themselves are rarely able to
research and investigate facts easily. This alone does not
deem a case complex. See Wilborn, 789 F.2d at 1331. Factual
disputes and thus anticipated examination of witnesses at
trial does not establish exceptional circumstances supporting
an appointment of counsel. Rand, 113 F.3d at 1525. Mr. Jones
has not made a sufficient showing of exceptional
circumstances. He has not demonstrated a likelihood of
success on the merits or his inability to articulate his
claims pro se.
pursuant to the federal statutes governing proceedings in
forma pauperis and cases filed by prisoners, federal courts
must engage in a preliminary screening of a case to assess
the merits of the claims. 28 U.S.C. § 1915(e)(2); 28
U.S.C. § 1915A(a). Accordingly, the Court must identify
cognizable claims, or dismiss the complaint, or any portion
of the complaint, if the complaint is frivolous, malicious,
fails to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. §
1915A. The Court will not consider the appointment of counsel
prior to the completion of this screening process.
Temporary Restraining Order
Jones filed a declaration and a proposed order which the
Court has construed together as a motion for temporary
restraining order. “A preliminary injunction is an
extraordinary remedy never awarded as of right.”
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 24 (2008) (citations omitted). It serves not as a
preliminary adjudication on the merits, but as a tool to
preserve the status quo and prevent irreparable loss of
rights before judgment. Textile Unlimited, Inc. v. A..
BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). In
reviewing a motion for preliminary injunction, “courts
must balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of
the requested relief.” Winter, 555 U.S. at 24
(citations and internal quotation marks 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.” Winter,
555 U.S. at 20 (citations omitted).
does not expressly prohibit use of a “sliding scale
approach to preliminary injunctions” whereby “the
elements of the preliminary injunction test are balanced, so
that a stronger showing of one element may offset a weaker
showing of another.” Alliance/or the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The
Ninth Circuit recognizes one such “approach under which
a preliminary injunction could issue where the likelihood of
success is such that serious questions going to the merits
were raised and the balance of hardships tips sharply in
plaintiff's favor.” Id. (citations,
internal quotation marks omitted).
preliminary injunction “should not be granted unless
the movant, by a clear showing, carries the burden of
persuasion.” Lopez v. Brewer, 680 F.3d 1068,
1072 (9th Cir. 2012) (citations omitted, emphasis in
original). A request for a mandatory injunction seeking
relief well beyond the status quo is disfavored and shall not
be granted unless the facts and law clearly favor the moving
party. Stanley v. Univ. of S. Cal., 13 F.3d 1313,
1319-20 (9th Cir. 1994).
Supreme Court has found that a preliminary injunction is
appropriate to grant relief of the “same character as
that which may be granted finally.” De Beers
Consol. Mines v. U.S., 325 U.S. 212, 220 (1945). A court
may not issue an injunction in “a matter lying wholly
outside the issues in the suit.” Id. The Ninth
Circuit has explained:
[T]here must be a relationship between the injury claimed in
the motion for injunctive relief and the conduct asserted in
the underlying complaint. This requires a sufficient nexus
between the claims raised in a motion for injunctive relief
and the claims set forth in the underlying complaint itself.
The relationship between the preliminary injunction and the
underlying complaint is sufficiently strong where the
preliminary injunction would grant ‘relief of the same
character as that which may ...