Harris v. Lyou et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAUL A. HARRIS,
Plaintiff,
vs.
CHRIS LYOU, et al.,
Defendants.
Case No. 3:20-cv-00121-RRB
ORDER REGARDING PENDING MOTIONS
Self-represented prisoner, Paul A. Harris, has filed multiple motions, which
in brief sum, request a medical examination, copies, a prison transfer, and the
appointment of counsel.
A. 	Motion for a Medical Examination and Treatment (Docket 18)
Mr. Harris requests a medical examination, because “the prison medical
assistant will not or even acknowledge the serious and dangerous consequences
of his first medical evaluation of my injuries and disability[ies] that are very visible
alone.”1 	In support, Mr. Harris cites to (1) the Eighth Amendment deliberate
indifference standard under which his claims are being litigated;2 (2) Federal Rule
1 Docket 18 at 2.
2 Ultimately, the deliberate indifference standard will be used to determine the legal
sufficiency of Mr. Harris’s claims of serious medical need. 	See generally Estelle v.
Gamble, 429 U.S. 97 (1976). However, this standard is not appropriate for this motion.
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of Civil Procedure 35; and (3) Smith v. Jenkins, 919 F.2d 90 (8th Cir. 1990).3 For
relief, he requests an “[outside] medical evaluation by orthopedic physician or
osteopathy and to be placed in a correctional facility that can house an inmate with
ongoing medical problems that are permanent[.]”4
Defendants oppose the motions, arguing that Rule 35 does not apply, and
that Mr. Harris’s request for a prison transfer “falls outside this court’s purview
because as an executive agency, DOC is entitled to enact policies and procedures
regarding inmate location.” 5
Rule 35(a)(1) states: 	“The court where the action is pending may order a
party 	whose 	mental 	or 	physical 	condition—including 	blood 	group—is 	in
controversy to submit to a physical or mental examination by a suitably licensed or
certified examiner.” Rule 35(a)(2)(A) further explains that such a court order “may
be made only on motion for good cause and on notice to all parties and the person
to be examined.” 	Rule 35 is a discovery rule and properly applied in order for a
party to investigate and evaluate a mental or physical condition in controversy.6 A
Rule 35 motion is “only to be ordered upon a discriminating application by the
3 Docket 18 at 1-2.
4 Docket 18 at 3.
5 Docket 20. The Department of Law for the State of Alaska represents a portion of the
named defendants in this action. For the purposes of this order, the “Defendants” refers
to these represented defendant parties only.
6 Schlagenhauf v. Holder, 379 U.S. 104, 112–22 (1964).
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district judge.”7 	Rule 35 does not provide a mechanism for a moving party to
receive court ordered medical treatment.8
Mr. Harris moves the Court to compel the Defendants to provide access to
specific medical evaluations and treatment. This is not contemplated by Rule 35.
Moreover, at this stage in litigation, Mr. Harris’s alleged conditions are not yet in
controversy, as the Defendants have yet to contest either the existence or severity
of his alleged conditions. 	Rule 35 has been misapplied and good cause has not
been shown.9 Accordingly, the motion at Docket 18 is DENIED.
B. 	Motion for Copies of Dockets 1–14 (Docket 19)
Mr. Harris renews his previously granted request for copies stating that he
received the Court’s prior order, but not the requested copies. Therefore, for good
cause appearing, the motion at Docket 19 is GRANTED.
C. 	Motion for Transfer of Prison Facility (Dockets 23 & 25)
Mr. Harris makes two motions requesting to transfer prison facilities. 	Both
motions allege that he is in segregated housing due to threats made on his life
related to incidents at Goose Creek Correctional Center. 	He alleges that his
7 Id. at 121.
8 See Fed. R. Civ. P. 35.
9 Each party raises persuasive authority in support of its respective position; however,
since Rule 35 does not provide the relief requested, the Court declines to further evaluate
these arguments.
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placement in segregation is “retaliatory punishment,”10 and that prison officials are
using inmates to threaten his life.11 	In support of these motions, Mr. Harris
provides (1) a page of short form briefing on retaliation; (2) an Administrative
Segregation Admission form; (3) a Spring Creek Correctional Center Incident
Report Form; and (4) an Administrative Segregation Hearing Form.12 Defendants
have filed an opposition on two grounds (1) Mr. Harris’s motions fall outside the
purview of the Court and (2) that Mr. Harris requested to be placed in segregation
as shown by his exhibits.13
As to this Court’s purview, “[t]here is no iron curtain drawn between the
Constitution and the prisons of this country.”14 	“When a prison regulation or
practice 	offends 	a 	fundamental 	constitutional 	guarantee, 	federal 	courts 	will
discharge their duty to protect constitutional rights.”15 	Prison officials are tasked
with difficult mission of administering complex prisoner populations.16 	The Court
must pay deference to the judgment of prison officials, “so long as that judgment
10 Docket 23.
11 Docket 25.
12 Docket 23 at 3–6; Docket 25 at 3–6.
13 Docket 26.
14 Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
15 Procunier v. Martinez, 416 U.S. 396, 406–06 (1974).
16 Shorter v. Baca, 895 F.3d 1176, 1189 (9th Cir. 2018).
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does not manifest to either deliberate indifference or an intent to inflict harm.”17
The issue of deference is more acute when state prison officials are defendants in
federal court,18 but that deference does not extend to a clear violation of a
prisoner’s constitutional rights.19
With respect to the underlying request, an examination of Mr. Harris’s
exhibits shows: 	(1) Mr. Harris had a verbal conversation with MH Becker, where
he reported feeling unsafe, and MH Becker responded by informing the housing
module officer.20 	Mr. Harris requested protective custody and was admitted into
Administrative Segregation.21 	On December 2, 2020, a hearing was held where
(1) the committee found that Mr. Harris “has submitted in writing a request for
protective custody along with his reason for the request”; (2) Mr. Harris stated “I
knew I would have problems here. I would like to go somewhere where this is not
a problem, like Kenai”; and (3) another review was scheduled for the following
month.22 	Mr. Harris’s exhibits demonstrate that he has requested protective
17 See Noble v. Adams, 646 F.3d 1138, 1143 (9th Cir. 2011) (as amended).
18 See Turner v. Safley, 482 U.S. 78, 84 (1987).
19 Noble, 646 F.3d at 1143.
20 Docket 23 at 5; Docket 25 at 5.
21 Docket 23 at 4; Docket 25 at 4.
22 Docket 23 at 6; Docket 25 at 6.
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custody through Administrative Segregation and that Spring Creek Correctional
Center officials have accommodated that request.
Generally, a prisoner does not have a constitutional right to a prison
transfer.23 	A prisoner may have a liberty interest when placed in administrative
segregation, but such interests must be protected by review procedures and a
prisoner plaintiff must show “atypical and significant hardship.”24
Mr. Harris has been placed in Administrative Segregation at his request for
enhanced security protection. 	He receives regular review of this placement. 	He
does not have a de facto right to transfer facilities. 	Finally, the Court must show
deference to prison officials regarding Mr. Harris’s placement at Spring Creek
Correctional Center, as his motion does not demonstrate a constitutional violation.
Therefore, the motions at Docket 23 and 25 are DENIED.
D. 	Motion for Appointment of Counsel (Docket 24)
Mr. Harris requests counsel alleging severe dementia and citing to Federal
Rule of Civil Procedure 17. 	At Docket 27, Defendants have responded in
opposition arguing (1) the Court has previously ruled on this issue; (2) Rule 17
23 See Olim v. Wakinekona, 461 U.S. 238, 245 (1983).
24 See Sandin v. Conner, 515 U.S. 472 (1995) (creating the atypical and significant
hardship test); see Keenan v. Hall, 83 F.3d 1083, 1088–89 (9th Cir. 1996), amended by
135 F.3d 1318 (9th Cir. 1998) (implicitly recognizing a liberty interest claim in a prisoner’s
placement in administrative segregation by remanding back to the district court for further
fact finding); see also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
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does not apply to the facts presented; and (3) Mr. Harris’s claims of dementia are
not sufficiently supported.
Rule 17(c) addresses who may sue or defend a minor or incompetent person
as a representative proceeding in a civil action in federal district court. Specifically,
Rule 17(c)(2) provides that “a minor or incompetent person who does not have a
fully appointed representative may sue by a next friend or by a guardian ad litem—
or issue another appropriate order—to protect a minor or incompetent person who
is unrepresented in an action.” 	Rule 17 does not address or authorize the
appointment of counsel, as requested by Mr. Harris.
Moreover, the Court already has ruled on this issue.25 	Mr. Harris submits
an exhibit from 2018 stating that he has severe dementia.26 In all of his pleadings
and motions, Mr. Harris has expressed himself clearly, concisely, and even
articulated well-researched points of law, whether rightly or wrongly applied. The
Court 	does 	not 	find 	that 	Mr. 	Harris’s 	case 	presents 	new 	or 	“exceptional”
circumstances as required.27 The Court reminds Mr. Harris that his case has been
referred to the Federal Pro Bono Project and is being advertised as needing
25 Docket 8 at 15.
26 Docket 24-1 at 1.
27 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“[A] court may under ‘exceptional
circumstances’ 	appoint 	counsel 	for 	indigent 	civil 	litigants 	pursuant 	to 	28 	U.S.C.
§ 1915(e)(1).”) (citations omitted).
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volunteer counsel. Should a volunteer attorney step forward, the Court will appoint
counsel at that time. Accordingly, the motion at Docket 24 is DENIED.
IT IS THEREFORE ORDERED:
1. 	Plaintiff’s Motion for a Medical Expert, Orthopedic Physician to Evaluate and
Treat Permanent Injuries that are Ongoing at Docket 18 is DENIED.
2. 	Plaintiff’s Motion for Copies of Dockets 1–14 at Docket 19 is GRANTED.
The Clerk of Court shall include copies of the of docket entries 1–14,
along with a copy of this order.
3. 	Defendant’s Motion for an Extension of Time at Docket 21 is DENIED AS
MOOT.
4. 	Plaintiff’s Motion for Transfer of Prison Facility at Docket 23 is DENIED.
5. 	Plaintiff’s Motion for Appointment of Counsel at Docket 24 is DENIED.
6. 	Plaintiff’s Motion for Prison Transfer at Docket 25 is DENIED.
DATED at Anchorage, Alaska, this 17th day of February, 2021.
/s/ Ralph R. Beistline
Ralph R. Beistline
Senior United States District Judge
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