(HC) Rodriguez v. Fisher, No. 3:2021cv01395 - Document 23 (S.D. Cal. 2021)
Court Description: REPORT AND RECOMMENDATION For Order Denying Petitioner's Motion For Order Directing Sheriff To Recognize Petitioner As Pro Se Litigant [ECF No. 20 ]. Signed by Magistrate Judge Allison H. Goddard on 12/10/2021.(All non-registered users served via U.S. Mail Service)(dxf)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 3:21-cv-01395-JLS-AHG Petitioner, 12 13 v. 14 KATHLEEN ALLISON, Secretary, 15 16 Respondent. REPORT AND RECOMMENDATION FOR ORDER DENYING PETITIONER’S MOTION FOR ORDER DIRECTING SHERIFF TO RECOGNIZE PETITIONER AS PRO SE LITIGANT 17 18 [ECF No. 20] 19 Petitioner Pedro Rodriguez (“Petitioner”), a state prisoner proceeding pro se and 20 in forma pauperis, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 21 § 2254. ECF Nos. 1, 7. Before the Court is Petitioner’s Ex Parte Motion for Order 22 Directing Sheriff William Gore to Recognize Petitioner as Pro Se Litigant and Grant 23 Petitioner the Same Privileges as Other Self-Represented Prisoners. ECF No. 20. Petitioner 24 seeks an order from the Court compelling Sheriff William Gore to provide Petitioner with 25 law library access, unrestricted correspondence to the courts, copy services, Lexis Nexis 26 access, and access to his own legal work product. Id. at 1. After reviewing Petitioner’s 27 motion and supporting documents, and for the reasons discussed below, the Court 28 RECOMMENDS that the District Judge DENY the motion. 1 3:21-cv-01395-JLS-AHG 1 I. 2 Petitioner is presently incarcerated in the George F. Bailey Detention Facility, 3 located in San Diego, California. ECF No. 17. Petitioner asserts that “[t]he San Diego 4 Central Jail1 has a law library available for pro se inmates with Lexis Nexis computers, 5 copy resources, and supplies to correspond with the courts.” ECF No. 20 at 2. Petitioner 6 contends that he has been denied access to legal resources without cause. Id. For example, 7 Petitioner represents that he is “not allowed to receive stamps or stationery from family 8 members and is told stamps and stationery must be purchased through [the] commissary 9 which is very unreliable.” Id. Also, Petitioner is “only allowed one case law request per 10 month via the paging system.” Id.; see id. at 6 (San Diego County Sheriff’s Department 11 Legal Research Assistance Information fact sheet, explaining the process and stating 12 “responses to this service are limited to one request per calendar month, responses are 13 limited to a maximum of 50 pages”). Petitioner also contends that his legal work product 14 had been confiscated and he was denied access to his own legal reference books and 15 documents. Id. at 2; Id. (noting that “the confiscated legal property contains all the 16 Petitioner’s open cases”). Petitioner argues that he is “being treated differently than other 17 prisoners convicted of the same category crime,” in violation of the Fourteenth 18 Amendment. Id. at 3. Therefore, Petitioner requests that the Court “issue an order directing 19 Sheriff William Gore to recognize the Petitioner as a pro se litigant and grant the Petitioner 20 the same privileges as other self-represented prisoners, such as law library access, 21 unrestricted correspondence to the courts, copy services, Lexis Nexis access, and access to 22 the Petitioner’s own legal work product[.]” Id. at 1, 3. 23 // 24 // BACKGROUND 25 26 27 28 Petitioner is incarcerated at GFB, George F. Bailey Detention Facility (“GFB”), however, he references the law library resources available at the San Diego Central Jail (“SDCJ”). Whether Petitioner is requesting to go to SDCJ to utilize its resources, or is requesting that GFB adopt the same procedures in place at SDCJ, the Court’s analysis remains the same. 1 2 3:21-cv-01395-JLS-AHG 1 II. 2 The Court construes Plaintiff’s instant request as a motion for preliminary 3 injunction. See, e.g., Carroll v. Warden, No. 19cv2126-BAS-KSC, 2021 U.S. Dist. LEXIS 4 93469, at *1–*2 (S.D. Cal. May 17, 2021) (construing pro se inmate’s request for an order 5 requiring the prison to provide him free phone use and access to the law library as a motion 6 for preliminary injunction); Foster v. Baker, No. 18cv1511-DAD-SAB-PC, 2020 WL 7 838301, at *1 (E.D. Cal. Feb. 19, 2020) (construing pro se inmate’s request for an order 8 requiring the prison to provide him access to a typewriter and the law library as a motion 9 for preliminary injunction); cf. Craver v. Floyd, No. 20cv2327-DB-P, 2021 WL 4129664, 10 at *2 (E.D. Cal. Sept. 10, 2021) (treating pro se inmate’s “motion for judicial intervention” 11 which requested “an order directing the warden [] to return plaintiff’s personal property” 12 as a motion for preliminary injunction); Johnson v. Dovey, No. 08cv640-LJO-DLB-PC, 13 2012 WL 2196119, at *1–*2 (E.D. Cal. June 14, 2012) (treating pro se inmate’s request 14 for an order directing the warden to provide him access to the law library once a week until 15 the conclusion of the case as a motion for preliminary injunction). DISCUSSION 16 As a threshold matter, the Court does not clearly have jurisdiction to issue the 17 injunction Petitioner seeks. Petitioner requests that the “Court issue an order directing 18 Sheriff William Gore to provide Petitioner with law library access, unrestricted 19 correspondence to the courts, copy services, Lexis Nexis access, and access to his legal 20 work product,” but Sheriff Gore is not a party to this case. See ECF No. 1 (naming Warden 21 Fisher as sole Respondent in § 2254 habeas petition); ECF No. 13 (substituting Kathleen 22 Allison, Secretary of the California Department of Corrections and Rehabilitation, as 23 Respondent). The Court does not have jurisdiction to order injunctive relief that would 24 require directing parties not before the Court to take action. See Zepeda v. U.S. Immigr. & 25 Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an 26 injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over 27 the claim; it may not attempt to determine the rights of persons not before the court.”); see, 28 e.g., Jacome v. Vlahakis, No. 18cv10-GPC-MDD, 2019 U.S. Dist. LEXIS 161025, at *2– 3 3:21-cv-01395-JLS-AHG 1 *3 (S.D. Cal. Sept. 19, 2019) (denying inmate’s request for access to the law library 2 “[b]ecause Plaintiff has not made the law library a party to this action, nor otherwise 3 established jurisdiction over it, Plaintiff’s request is not actionable”); Ransom v. Dep’t of 4 Corr. & Rehab., No. 11cv68-AWI-MJS-PC, 2015 WL 5146749, at *2 (E.D. Cal. Sept. 1, 5 2015) (denying inmate’s request that the law library provide him with Priority Library User 6 status because “Plaintiff is seeking relief against a non-party. The Court does not have 7 jurisdiction over Corcoran State Prison, and thus cannot issue a temporary restraining order 8 or preliminary injunction against it”); Johnson, 2012 WL 2196119, at *2 (denying inmate’s 9 denying a motion for an order directing the warden to provide him access to the law library 10 where the warden was not a party to the action). Therefore, the Court recommends that 11 Petitioner’s request be denied. 12 The Court notes that Petitioner’s request would also fail on the merits. A party 13 seeking a preliminary injunction must establish that (1) he is likely to succeed on the merits, 14 (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the 15 balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter 16 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, (2008) (citations omitted). In a suit 17 pertaining to a prisoner’s access to the law library, a successful claim requires a showing 18 of “actual injury” resulting from a denial of access. Lewis v. Casey, 518 U.S. 343, 349 19 (1996). To establish he suffered an actual injury, Petitioner must show “actual prejudice 20 with respect to contemplated or existing litigation, such as the inability to meet a filing 21 deadline or to present a claim.” Id. at 348. For example: 22 23 24 25 26 27 28 [T]he inmate ... must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint. Id. at 351. 4 3:21-cv-01395-JLS-AHG 1 Here, Petitioner contends that he “is still attacking his conviction which contains 2 complex issues of res judicata, laws which are void for vagueness, fabrication of evidence, 3 and double jeopardy, not forgetting judicial bias and Brady violations. Without access to 4 the Petitioner’s own work product, the Petitioner cannot present a coherent argument 5 supported by evidence.” ECF No. 20 at 3. The Court notes that Petitioner has already filed 6 his Petition in this case (ECF No. 1), and Respondent’s response to the Petition is not due 7 until January 7, with Petitioner’s response due on February 9. ECF No. 16. As such, 8 Petitioner has not shown any actual injury, as no filings are due at this time. See Hunter v. 9 Fisher, No. 19cv625-AWI-BAM-PC, 2020 WL 3493070, at *2 (E.D. Cal. Apr. 17, 2020) 10 (denying request for law library access because, in part, “Plaintiff has not alleged that he 11 is at risk of missing any particular deadline in this action or that he is currently attempting 12 to draft or research a specific motion to be filed in this action, and the Court has no pending 13 motions filed by Defendants which would require the filing of a response from Plaintiff.”). 14 In this instance, Petitioner “has failed to allege or demonstrate ‘actual injury’ by the failure 15 of access to law library. Thus, [Petitioner] has failed to demonstrate that in the absence of 16 preliminary injunctive relief he is likely to suffer actual injury in prosecuting his case. 17 ‘Speculative injury does not constitute irreparable injury sufficient to warrant granting a 18 preliminary injunction.’” Foster, 2020 WL 838301, at *2 (quoting Caribbean Marine 19 Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)); see Eckard v. Thomas, No. 20 C19-669-TSZ, 2019 WL 2493411, at *2 (W.D. Wash. May 20, 2019) (denying inmate’s 21 request for law library access, because, in part, he had not alleged actual injury and 22 “provide[d] no allegations or evidence his alleged lack of access to legal materials has 23 injured him,” and therefore had not shown that he was likely to succeed on the merits of 24 an access to courts claim or suffer irreparable injury). It follows that, because Petitioner 25 has not shown he is “‘likely to suffer irreparable harm in the absence of preliminary relief,’ 26 [] we need not address the ... remaining elements of the preliminary injunction standard.” 27 Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011) (internal citation 28 omitted). Therefore, the Court recommends that Petitioner’s request be denied. 5 3:21-cv-01395-JLS-AHG 1 However, the Court notes that if Petitioner requires additional time to meet a specific 2 deadline in the future due to his limited access to the library or his legal work product, he 3 may file a motion for an extension, setting forth good cause for the extension of that 4 deadline. See, e.g., Carroll, 2021 U.S. Dist. LEXIS 93469, at *2–*5 (denying inmate’s 5 request for law library access, but noting that, “to the extent restricted access to resources 6 impede Plaintiff’s ability to prosecute this action going forward, he may seek extensions 7 of time to comply with court-ordered deadlines”). 8 III. 9 The Court submits this Report and Recommendation to United States District Judge 10 Janis L. Sammartino under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(a) of the 11 United States District Court for the Southern District of California. For the reasons set forth 12 above, IT IS HEREBY RECOMMENDED that the District Judge issue an Order: 13 (1) approving and adopting this Report and Recommendation, and (2) DENYING 14 Petitioner’s Ex Parte Motion for Order Directing Sheriff William Gore to Recognize 15 Petitioner as Pro Se Litigant and Grant Petitioner the Same Privileges as Other Self- 16 Represented Prisoners. ECF No. 20. CONCLUSION AND RECOMMENDATION 17 IT IS HEREBY ORDERED that any party to this action may file written objections 18 with the Court and serve a copy on all parties no later than December 27, 2021. The 19 document should be captioned “Objections to Report and Recommendation.” 20 21 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with the Court and served on all parties no later than January 10, 2022. 22 The parties are advised that failure to file objections within the specified time may 23 waive the right to raise those objections on appeal of the Court’s Order. See Turner v. 24 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 25 1991). 26 27 IT IS SO ORDERED. Dated: December 10, 2021 28 6 3:21-cv-01395-JLS-AHG
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