United States District Court, E.D. Oklahoma
FORREST L. ZUDELL, Plaintiff,
ARCHIE VAN HORN, et al., Defendants.
OPINION AND ORDER
A. White United States District Judge.
matter is before the Court on three motions by Plaintiff
Forrest L. Zudell. Plaintiff, a pro se prisoner in the
custody of the Oklahoma Department of Corrections who is
incarcerated at Clara Waters Community Corrections Center in
Oklahoma City, Oklahoma, brought this action under the
authority of 42 U.S.C. § 1983, seeking relief for
alleged constitutional violations arising from his criminal
prosecution in Pontotoc County District Court Case No.
CF-2012-492. The defendants are Archie Van Horn, homeowner;
Jason Christopher, Attorney; Adam Banner, Attorney; Ryan
Coventon, Attorney; Cris Crow, Police Officer; Mathew Weide,
Assistant District Attorney, and the Light Horse Police
Motion to Amend Complaint
has filed a motion to amend the complaint by adding Shaw
Machine, located in Ada, Oklahoma, as a defendant (Dkt. 5).
He, however, failed to submit a proposed amended complaint
with the motion, in accordance with Local Civil Rule
9.2©. Therefore, Plaintiff's motion to amend
complaint is DENIED.
is advised that any attempt to add a defendant in a §
1983 civil rights action requires that the proposed defendant
be a “person” acting under color of state law:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. . . .
Id. (emphasis added). See also Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1237
(10th Cir. 1999) (holding that “a cause of action under
§ 1983 requires a deprivation of a civil right by a
‘person' acting under color of state law”).
Motion for Appointment of Counsel
also has filed a motion requesting the Court to appoint
counsel (Dkt. 8). He bears the burden of convincing the Court
that his claim has sufficient merit to warrant such
appointment. McCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985) (citing United States v. Masters,
484 F.2d 1251, 1253 (10th Cir. 1973)).
Court has carefully reviewed the merits of Plaintiff's
claims, the nature of factual issues raised in his
allegations, and his ability to investigate crucial facts.
McCarthy, 753 F.2d at 838 (citing Maclin v.
Freake, 650 F.2d 885, 887-88 (7th Cir. 1981)). After
considering Plaintiff's ability to present his claims and
the complexity of the legal issues raised by the claims, the
Court finds that appointment of counsel is not warranted.
See Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991); see also Rucks v. Boergermann, 57 F.3d 978,
979 (10th Cir. 1995). The motion for appointment of counsel
Motion to Order Legal Mail Delivery
third motion is a request that the Court issue an order
requiring his facility to deliver his legal mail on the day
it is received (Dkt. 17). The Court construes this motion as
a request for a preliminary injunction.
preliminary injunction grants intermediate relief of the same
character as that which may be finally granted. See De
Beers Consol. Mines v. United States, 325 U.S. 212, 220
(1945). When the movant seeks intermediate relief beyond the
claims in the complaint, the court is powerless to enter a
preliminary injunction. See Terry v. Jones, 2007 WL
962916 (W. D. Okla. Mar. 30, 2007) (unpublished order)
(denying a motion for a preliminary injunction on grounds
that the petitioner had failed to establish a relationship
between preliminary relief and the claims in his habeas
petition); accord Stewart v. United States Immigration
& Naturalization Serv., 762 F.2d 193, 198-99 (2d
Cir. 1985) (holding that the district court lacked
jurisdiction to issue a preliminary injunction because the
movant had “present[ed] issues which [were] entirely
different from those which [had been] alleged in his original
complaint”); Omega World Travel, Inc. v. Trans
World Airlines, 111 F.3d 14, 16 (4th Cir. 1997)
(“a preliminary injunction may never issue to prevent
an injury or harm which not even the moving party contends
was caused by the wrong claimed in the underlying
action”); Alabama v. United States Army Corps of
Engineers, 424 F.3d 1117, 1134 (11th Cir. 2005)
(“injunctive relief must relate in some fashion to the
relief requested in the complaint” (citation omitted)).
“Thus, a party moving for a preliminary injunction must
necessarily establish a relationship between the injury
claimed in the party's motion and the conduct asserted in
the complaint.” Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994); see also Penn v. San Juan Hosp.
Inc., 528 F.2d 1181, 1185 (10th Cir. 1975) (stating that
one seeking a preliminary injunction must present
“clear proof that he will probably prevail when the
merits are tried, so to this extent there is a relation
between temporary and permanent relief (citations omitted)).
the Court finds Plaintiff's request for same-day legal
mail delivery has no relationship to the allegations in his
complaint. In addition, Plaintiff does not allege that any of
the defendants are involved in prison mail delivery.
Furthermore, the motion fails to allege any violation of