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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEE V. QUILLAR,

Plaintiff, No. CIV S-04-1203 FCD KJM P

vs.

CALIFORNIA DEPARTMENT OF

CORRECTIONS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief under 42

U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. 

This proceeding was referred to this court by Local Rule 72-302 under 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28

U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 

Plaintiff is required to pay the statutory filing fee in effect at the time of filing of

this action, $150.00. 28 U.S.C. § 1914(a), 1915(b)(1). Plaintiff has been without funds for six

months and is currently without funds. Accordingly, the court will not assess an initial partial

filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty

percent of the preceding month’s income credited to plaintiff’s prison trust account. These

payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court

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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28

U.S.C. § 1915(b)(2).

Plaintiff’s January 21, 2005 amended complaint states a cognizable claim for

relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended

complaint are proven, plaintiff has a reasonable opportunity to prevail on his First Amendment,

Eighth Amendment, Fourteenth Amendment and RLUIPA claims against defendants Rowlett,

Murray and Mendoza. The court therefore will order that those defendants be served with

process. With respect to the other defendants and claims identified in plaintiff’s amended

complaint, plaintiff’s amended complaint fails to state a claim upon which relief can be granted. 

Plaintiff also has filed a motion requesting a temporary restraining order and

preliminary injunctive relief. While a temporary restraining order does not require actual notice

to the defendant against whom relief is sought, in this instance, plaintiff’s filing does not

demonstrate that he will suffer “immediate and irreparable injury, loss, or damage” if a

restraining order is not issued at this time. Fed. R. Civ. P. 65(b). Because no defendant has

appeared in this action or otherwise received notice of and a chance to respond to plaintiff’s

request for a preliminary injunction, such an injunction cannot issue. Fed. R. Civ. P. 65(a)(1). 

Plaintiff’s motion will be denied without prejudice to refiling against a defendant on whom

service has been authorized, after that defendant has appeared. 

Plaintiff additionally has filed a motion asking that he be placed in federal

custody. Plaintiff has not provided a legal basis in support of his request. His motion will be

denied. 

Plaintiff further asks that the court appoint him a “special investigator.” There is

no cause for appointment of an investigator at this stage of the case. Plaintiff’s motion will be

denied.

Finally, plaintiff has requested the appointment of counsel. The United States

Supreme Court has ruled that district courts lack authority to require counsel to represent

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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 under 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. Plaintiff’s request for the appointment of

counsel will therefore be denied.

Plaintiff is informed that the court views some of his motions, namely the request

for an investigator and the request for transfer to federal custody, as frivolous. If plaintiff

continues to file frivolous motions, i.e., motions that have no legal basis, plaintiff will be

sanctioned, possibly with dismissal of this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

The fee shall be collected and paid in accordance with this court’s order to the Director of the

California Department of Corrections filed concurrently herewith.

3. Service is appropriate for the following defendants: Rowlett, Murray and

Mendoza . 

4. The Clerk of the Court shall send plaintiff three USM-285 forms, one

summons, an instruction sheet and a copy of the amended complaint filed January 21, 2005.

5. Within thirty days from the date of this order, plaintiff shall complete the

attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 3

above; and

d. Four copies of the endorsed amended complaint filed January 21, 2005. 

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6. Plaintiff need not attempt service on defendants and need not request waiver of

service. Upon receipt of the above-described documents, the court will direct the United States

Marshal to serve the above-named defendants as provided by Federal Rule of Civil Procedure 4

without payment of costs. 

7. Plaintiff’s June 14, 2005 motion for preliminary injunctive relief is denied

without prejudice to re-filing with respect to a particular defendant after that defendant has

appeared in this case.

8. Plaintiff’s July 19, 2005 “Motion To Review Additional Evidence . . .” is

denied.

9. Plaintiff’s September 7, 2005 “Motion For An Emergency Protective 

Order . . .” is denied. 

10. Plaintiff’s September 7, 2005 request for the appointment of counsel is

denied.

11. Plaintiff’s September 12, 2005 request for the appointment of a “special

investigator” is denied.

DATED: December 5, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1

quil1203.1

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEE. V. QUILLAR,

Plaintiff, No. CIV-S-04-1203 FCD KJM P

vs.

CALIFORNIA DEPARTMENT OF

CORRECTIONS, et al.,

 NOTICE OF SUBMISSION

Defendants. OF DOCUMENTS

 /

Plaintiff hereby submits the following documents in compliance with the court's

order filed :

 completed summons form

 completed USM-285 forms

 copies of the 

 Amended Complaint

DATED: 

 

Plaintiff

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