(PC) Woods v. Carey et al, No. 2:2006cv01857 - Document 76 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/14/11 ORDERING service is appropriate for defendants Carey and Cervantes. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons, instruction s heet and a copy of the 05/19/11 fifth amended complaint to be completed and returned within 30 days. Also, RECOMMENDING that plaintiff's 08/30/11 motion for injunctive relief 75 be denied. MOTION for injunctive relief 75 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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(PC) Woods v. Carey et al Doc. 76 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EARNEST C. WOODS, 11 Plaintiff, 12 13 No. CIV S-06-1857 GEB EFB P vs. TOM L. CAREY, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. This case was referred to the undersigned under Local Rule 302(c)(17), pursuant 18 to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s fifth amended 19 complaint, filed after the court dismissed the fourth amended complaint pursuant to 28 U.S.C. 20 § 1915A, and granted plaintiff one final opportunity to amend. Also pending is plaintiff’s 21 motion for a temporary restraining order. 22 I. Background 23 On June 3, 2008, the court dismissed this action under Federal Rule of Civil Procedure 8 24 on the basis that plaintiff’s second amended complaint was prolix and obscure and that plaintiff 25 had therefore failed to state a claim upon which relief could be granted. Dckt. Nos. 26, 35. 26 Judgment was duly entered. Dckt. No. 38. 1 Dockets.Justia.com 1 Plaintiff appealed the judgment to the Court of Appeals for the Ninth Circuit. Dckt. No. 2 40. On July 6, 2009, the Court of Appeals determined that the complaint should not have been 3 dismissed on this basis, finding that the complaint “delineated a number of claims with sufficient 4 specificity and detail,”and remanded the action to this court “for additional proceedings 5 consistent with [its] disposition.” Dckt. No. 43 at 2. 6 Therefore, on April 26, 2010, the court re-screened the second amended complaint 7 pursuant to 28 U.S.C. § 1915A. Dckt. No. 47. The court explained that pursuant to 28 U.S.C. 8 § 1915A(a), it is directed to identify cognizable claims or dismiss the complaint, or any portion 9 of the complaint, if it is frivolous, malicious, fails to state a claim upon which relief may be 10 11 granted, or seeks monetary relief from an immune defendant. In its screening order, the court summarized the second amended complaint’s extensive 12 and apparently unrelated allegations against 42 defendants. The court noted that most of the 13 allegations simply documented the numerous inmate appeals plaintiff had filed over the course 14 of several years, regarding a wide range of issues, and claimed that Carey, the warden, and 15 Cervantes, the appeals coordinator had “white-washed” the appeals process. Construing the 16 complaint liberally, the court determined plaintiff could proceed on a First Amendment 17 retaliation claim against defendant Cervantes and dismissed the remaining claims because they 18 were either not cognizable or were improperly joined in a single lawsuit. Dckt. Nos. 47, 52. The 19 court granted plaintiff leave to amend, if he so desired, for the limited purpose of adding a 20 related, and cognizable claim against defendant Carey, in addition to a retaliation claim against 21 Cervantes. Dckt. No. 47. 22 On May 28, 2010, plaintiff filed a third amended complaint. Dckt. No. 50. Despite the 23 court’s instructions, the third amended complaint named 45 defendants, and the allegations again 24 consisted of a list of dozens of inmate appeals plaintiff had filed against various prison officials, 25 regarding a broad range of concerns over a period spanning several years. Dckt. No. 59. While 26 the complaint included allegations against defendants Cervantes and Carey, it failed to state a 2 1 claim against either defendant. Plaintiff did not allege that Cervantes failed to process plaintiff’s 2 inmate appeals in retaliation for plaintiff’s exercise of any constitutionally-protected right, and 3 the allegations regarding Carey did not appear to be related to the allegations against Cervantes. 4 The court reminded plaintiff that unrelated claims against different defendants must be pursued 5 in separate lawsuits. The court granted plaintiff leave to file a fourth amended complaint and 6 specifically admonished plaintiff that any amended complaint must strictly adhere to the 7 directives set forth by the court and that failure to do so would result in a recommendation that 8 this action be dismissed without further leave to amend. Id. at 5-6. 9 On December 2, 2010, plaintiff filed a fourth amended complaint, which was nearly 10 identical to the third amended complaint. Dckt. No. 65. Accordingly, the court dismissed the 11 fourth amended complaint for failure to state a claim, improper joining of claims, and failure to 12 comply with the court’s instructions regarding the filing of an amended complaint. Dckt. No. 67. 13 The court granted plaintiff one final opportunity to amend his complaint. The court instructed 14 plaintiff that he must specifically allege what act or omission of each defendant allegedly 15 violated his federally protected rights, and that any amended complaint must be limited to a 16 retaliation claim against Cervantes, and a related claim, if any, against defendant Carey. The 17 court reminded plaintiff that his remaining claims had been dismissed from this action because 18 they were either not cognizable or they were improperly joined. Dckt. No. 52. 19 Now before the court is plaintiff’s fifth amended complaint, as well as a motion for a 20 temporary restraining order. Dckt. Nos. 73, 75. 21 II. Fifth Amended Complaint 22 The fifth amended complaint suffers from many of the same defects as plaintiffs’s 23 previously lodged complaints. Despite the court’s previous admonishments, the complaint is not 24 limited to allegations supporting a retaliation claim against Cervantes, and a related claim, if any, 25 against defendant Carey. Rather, plaintiff has named at least 36 defendants, and includes 26 lengthy, rambling and often vague and conclusory factual allegations. See Dckt. Nos. 73, 74. 3 1 However, liberally construed, and for the limited purposes of § 1915A screening, the complaint 2 states a potentially cognizable First Amendment retaliation claim against defendants Carey and 3 Cervantes. Plaintiff alleges that defendant Carey retaliated against plaintiff for filing a lawsuit 4 against him by directing defendant Cervantes to ignore plaintiff’s inmate appeals, and that 5 defendant Cervantes retaliated against plaintiff for filing such appeals. Plaintiff may proceed 6 with this action on his claim that Carey and Cervantes violated his First Amendment rights. 7 III. 8 9 Temporary Restraining Order Plaintiff seeks injunctive relief to prevent prison official from placing him in administrative segregation, destroying his property, or transferring him to another prison. Dckt. 10 No. 75. Plaintiff also claims that non-parties have interfered with medical treatment related to 11 his alleged esophagus condition. Id. 12 A preliminary injunction will not issue unless necessary to prevent threatened injury that 13 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 14 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 15 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 16 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, 17 Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a 18 party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer 19 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 20 and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 21 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth 22 Circuit Court of Appeals has also held that the “sliding scale” approach it applies to preliminary 23 injunctions as it relates to the showing a plaintiff must make regarding his chances of success on 24 the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 632 25 F.3d 1127, at 1134-35 (9th Cir. 2011). Under this sliding scale the elements of the preliminary 26 injunction test are balanced. As it relates to the merits analysis, a stronger showing of 4 1 irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. 2 Id. 3 In cases brought by prisoners involving conditions of confinement, any preliminary 4 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 5 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 6 harm.” 18 U.S.C. § 3626(a)(2). 7 Plaintiff’s motion for injunctive relief is unrelated to the claims on which this action 8 proceeds. Plaintiff has not adequately demonstrated that he is likely to prevail on the merits in 9 this action. Moreover, plaintiff’s motion refers to individuals who are not parties to this lawsuit. 10 The court cannot issue an order against individuals who are not parties to a suit pending before 11 it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). See also 12 Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an 13 injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the 14 claim; it may not attempt to determine the rights of persons not before the court.”). 15 Assuming a likelihood of success on the merits, plaintiff also fails to show that the 16 balance of equities and public interest weigh in favor of a preliminary injunction. Further, 17 plaintiff has not adequately demonstrated he is likely to suffer irreparable harm in the absence of 18 preliminary relief. The Supreme Court has held that the party seeking the injunction must prove 19 that he is likely to suffer irreparable harm in the absence of preliminary relief. Winter, 555 U.S. 20 at *22. Finally, plaintiff is hereby informed that inmates do not have a constitutional right to be 21 22 housed at a particular facility or institution or to be transferred, or not transferred, from one 23 facility or institution to another. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Johnson v. 24 Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). 25 //// 26 //// 5 1 IV. Conclusion 2 Accordingly, it is hereby ORDERED that: 3 1. Service is appropriate for defendants Carey and Cervantes. 4 2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 5 instruction sheet and one copy of the May 19, 2011 fifth amended complaint. 6 3. Within 30 days from service of this order, plaintiff shall complete the attached Notice 7 of Submission of Documents and submit it to the court with the completed summons and USM- 8 285 forms and three copies of the endorsed May 19, 2011 fifth amended complaint. 9 4. Upon receipt of the necessary materials, the court will direct the United States 10 Marshal to serve defendants Carey and Cervantes pursuant to Federal Rule of Civil Procedure 4 11 without payment of costs. Failure to comply with this order will result in a recommendation that 12 this action be dismissed. 13 14 Further, it is RECOMMENDED that plaintiff’s August 30, 2011 motion for injunctive relief be denied. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: November 14, 2011. 23 24 25 26 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EARNEST C. WOODS, 11 Plaintiff, 12 13 No. CIV S-06-1857 GEB EFB P vs. TOM L. CAREY, et al., 14 Defendants. NOTICE OF SUBMISSION OF DOCUMENTS 15 / 16 Plaintiff hereby submits the following documents in compliance with the court’s order 17 : filed 18 1 completed summons form 2 completed forms USM-285 3 copies of the Fifth Amended Complaint 19 20 21 22 Dated: 23 Plaintiff 24 25 26 7
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