(PC) Lipsey v. Seitz et al, No. 1:2018cv00766 - Document 28 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 20 Plaintiff's Motion for a Preliminary Injunction be DENIED re 26 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Sheila K. Oberto on 2/20/2020. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., 12 Plaintiff, 13 v. 14 B. SEITZ, et al., 15 Case No. 1:18-cv-00766-AWI-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION (Doc. 20) Defendants. 21-DAY DEADLINE 16 17 18 I. INTRODUCTION Plaintiff Christopher Lipsey, Jr., is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. section 1983 and California Civil Code 20 section 52.1 (Bane Act). (See Docs. 9, 26.) In his third amended complaint, Plaintiff names B. 21 Seitz, S. Kernan, and R. Diaz as defendants. (Doc. 26 at 2-3.) On February 13, 2020, the Court 22 issued findings and recommendations to dismiss Kernan as a defendant, but allowed Plaintiff’s 23 claims against Seitz and Diaz to proceed. (Doc. 27) 24 Before the Court is Plaintiff’s motion for a preliminary injunction. (Doc. 20.) Plaintiff 25 requests that the Court order the Secretary of the California Department of Corrections and 26 Rehabilitation (CDCR) to (1) process an administrative appeal by Plaintiff, (2) make emergency 27 amendments to Title 15 of the California Code of Regulations regarding inmate appeals, (3) 28 establish new procedures for inmate appeals, and (4) “release all appeals from … 2018 … to the 1 third level” of review. (Id. at 12-13.) Plaintiff contends that current regulations violate the 2 California Administrative Procedure Act, and that prison officials misuse current procedures to 3 “systematically” and “intentionally prevent [inmate] complaints from being fully investigated and 4 placed in CDCR staff personnel files.” (See id. at 2-3.) 5 6 II. DISCUSSION “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 7 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 8 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 9 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 10 favor, and that an injunction is in the public interest.” Id. at 20. 11 Plaintiff does not show that he is likely to succeed on the merits or that he will suffer 12 irreparable harm if the Court denies his requested relief. With respect to the merits, Plaintiff 13 provides no grounds for his claim that Title 15 violates the state Administrative Procedure Act. 14 Furthermore, under the federal Constitution, plaintiffs do not have a right to specific inmate 15 grievance procedures. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted). 16 Plaintiff’s arguments regarding the inadequacies of CDCR’s grievance procedures may be 17 relevant to whether Plaintiff must exhaust administrative remedies, see Ross v. Blake, 136 S. Ct. 18 1850, 1858-60 (2016); he may raise these arguments in response to a motion for summary 19 judgment by defendants for failure to exhaust. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 20 2014) (“defendants must produce evidence proving failure to exhaust … to carry their burden”). 21 However, Plaintiff does not have an independent right to “adequate” grievance procedures. Thus, 22 an independent claim based on the inadequacies of CDCR’s procedures will fail. 23 With respect to prospective harm, Plaintiff states that a prior lawsuit he had filed was 24 dismissed based on failure to exhaust. (Doc. 20 at 6-7.) Plaintiff thus appears to imply that he will 25 suffer harm in the future, if the Court does not order CDCR to change its grievance procedures. 26 (See id. at 6.) Such potential harm, however, is too speculative to warrant a preliminary 27 injunction. See O’Shea v. Littleton, 414 U.S. 488, 498 (1974) (“threat of injury … too remote to 28 satisfy the case-or-controversy requirement”). “Issuing a preliminary injunction based only on a 2 1 possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an 2 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 3 to such relief.” Winter, 555 U.S. at 22 (citation omitted). Here, Plaintiff does not make that 4 showing. Finally, Plaintiff’s requested injunction is unrelated to the claims he alleges in this lawsuit. 5 6 In his third amended complaint, Plaintiff raises claims of First Amendment retaliation under 7 section 1983 and the Bane Act. (See Doc. 26; see also Doc. 27.) Plaintiff does not challenge 8 CDCR’s grievance procedures or raise viable claims related thereto. “When a plaintiff seeks 9 injunctive relief based on claims not pled in the complaint, the court does not have the authority 10 to issue an injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 11 (9th Cir. 2015). “Because the Court only has jurisdiction over the operative claims in the 12 [c]omplaint,” which do not include the claims in Plaintiff’s motion, the Court lacks the authority 13 to provide the injunctive relief that Plaintiff seeks. Smith v. Rios, No. 1:10-cv-1554-AWI-MJS, 14 2010 WL 4603959, at *2 (E.D. Cal. 2010) (citations omitted). 15 III. CONCLUSION AND RECOMMENDATION For the reasons set forth above, the Court RECOMMENDS that Plaintiff’s motion for a 16 17 preliminary injunction (Doc. 20) be DENIED. These Findings and Recommendations will be 18 submitted to the District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. 19 section 636(b)(l). Within 21 days of the date of service of these Findings and Recommendations, 20 Plaintiff may file written objections with the Court. The document should be captioned, 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 23 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 27 IT IS SO ORDERED. Dated: February 20, 2020 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 3 .

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