(PC) Ellington v. Director Of Corrections et al, No. 2:2009cv02985 - Document 21 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/12/10 ORDERING plaintiff is granted an extension of 30 days in which to file an amended complaint that complies with the 12/23/09 order. Also, RECOMMENDING that plaintiff's 01/29/10 motion for injunctive relief 19 be denied. MOTION for Injunctive relief 19 referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M) Modified on 2/17/2010 (Plummer, M).
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(PC) Ellington v. Director Of Corrections et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARCUS RUBEN ELLINGTON, 11 12 Plaintiff, No. 2:09-cv-2985 MCE KJN P vs. 13 14 15 16 17 DIRECTOR OF CORRECTIONS, et al., Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with 18 a civil rights action pursuant to 42 U.S.C. § 1983. In the instant action, plaintiff claims various 19 defendants at High Desert State Prison incited inmates to beat up plaintiff and required plaintiff 20 to continue working despite painful physical injuries sustained in the beating. (December 9, 21 2009 Order at 1.) Plaintiff also filed a supplemental complaint and various other filings 22 concerning defendants at Kern Valley State Prison, alleging defendants at Kern Valley State 23 Prison are refusing to acknowledge his disabled status and have taken his wheelchair and walker, 24 in violation of the Americans with Disabilities Act (“ADA”). (Id. at 1-2.) On December 14, 25 2009, plaintiff filed a motion for injunctive relief. However, because plaintiff’s allegations 26 pertained to conditions of confinement at Kern Valley State Prison against defendants who are 1 Dockets.Justia.com 1 not parties to this action, the motion was transferred to the Fresno division for filing in Case No. 2 1:09-cv-2141 DLB (PC). (December 12, 2009 Order.) Plaintiff was reminded again that all 3 future filings concerning defendants located at Kern Valley State Prison shall be filed at the 4 Fresno address and reference the Fresno case number. (December 12, 2009 Order at 1-2; 5 December 9, 2009 Order at 2.) 6 On January 29, 2010, plaintiff filed a motion for preliminary injunction in which 7 he contends his myriad medical conditions are physical impairments within the meaning of the 8 ADA. Plaintiff contends that the Director of the California Department of Corrections and 9 Rehabilitation (“CDCR”) has issued orders to his subordinates directing them not to 10 accommodate plaintiff’s medical conditions which, in turn, prevents plaintiff from accessing the 11 law library, resulting in a deprivation of meaningful access to the courts. (Mot. at 2.) Plaintiff 12 contends that he has been unable to comply with this court’s order to file an amended complaint 13 because he is unable to access the law library to look up the Ngo1 case, to research other cases, or 14 demonstrate exhaustion of administrative remedies. Plaintiff concedes he was able to submit the 15 January 29, 2010 filing, but claims “he did so from the limited and outdated resources within his 16 cell.” (Id. at 3.) Plaintiff contends this required him to cite “outdated” case law. (Id.) 17 Plaintiff seeks a temporary restraining order and/or a preliminary injunction 18 requiring the Director of CDCR to show cause why the court should not order the director to 19 return plaintiff’s wheelchair and walker, and to produce the evidence upon which the director 20 relied to “cancel” plaintiff’s disability. (Mot. at 3.) Finally, plaintiff states: 21 plaintiff is aware that [] the court has sent plaintiff’s request for ‘injunction’ to the Fresno division of the Eastern District Court. However, that court has gone silent. while the plaintiff is being forced to crawl about on his knee’s. he is suffering irreparable harm and needs immediate relief. 22 23 24 Id. Plaintiff also provided a copy of a health services chronology, dated January 7, 2008, which 25 1 26 Ngo v. Woodford, 539 F.3d 1108, 1109-10 (9th Cir. 2008)(inmate whose formal appeal was rejected as untimely had not properly exhausted administrative remedies). 2 1 2 3 4 5 6 states: This inmate has a PERMANENT medical condition requiring a WHEELCHAIR (Outside Cell) for mobility (DPO). He uses a WALKER AND BRACE inside of cell. He is restricted to a SEDENTARY assignment. REQUIRES LOWER BUNK/LOWER TIER, NO STAIRS, AND NO TRIPLE BUNK HOUSING. THIS DISABILITY IMPACTS PLACEMENT. LIMITATION: No prolonged Standing/Walking 50% of the time in assignment. No REPETATIVE [sic] digging, bending, or lifting over 15 pounds. CSR ALERT: Requires relatively level terrain and no obstruction in path of travel. 7 8 9 (Mot., Ex. B, at 9.) The legal principles applicable to a request for injunctive relief are well 10 established. To prevail, the moving party must show either a likelihood of success on the merits 11 and the possibility of irreparable injury, or that serious questions are raised and the balance of 12 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 13 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 14 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 15 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 16 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 17 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 18 court need not reach the issue of likelihood of success on the merits. Id. 19 In cases brought by prisoners involving conditions of confinement, any 20 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 21 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 22 correct the harm.” 18 U.S.C. § 3626(a)(2). 23 Initially, the principal purpose of preliminary injunctive relief is to preserve the 24 court’s power to render a meaningful decision after a trial on the merits. See C. Wright & A. 25 Miller, 11 Federal Practice and Procedure, §2947 (1973). In addition to demonstrating that he 26 will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must 3 1 show a “fair chance of success on the merits” of his claim. Sports Form, Inc. v. United Press 2 International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of 3 International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 4 1979). Implicit in this required showing is that the relief awarded is only temporary and there 5 will be a full hearing on the merits of the claims raised in the injunction when the action is 6 brought to trial. 7 Pursuant to this court’s prior orders, the instant action is proceeding on plaintiff’s 8 claims based on events that took place at High Desert State Prison. Plaintiff’s civil rights 9 complaint alleging defendants at Kern Valley State Prison are refusing to acknowledge his 10 disabled status and have taken his wheelchair and walker, in violation of the ADA, is proceeding 11 in the Fresno Division of the Eastern District. (December 9, 2009 Order.) As plaintiff has 12 previously been informed, claims based on conditions of confinement at Kern Valley State Prison 13 must be raised in the Fresno Division of this court. Plaintiff’s filing demonstrates he is aware he 14 must raise those allegations in the Fresno Division because he complains that the Fresno Division 15 has failed to address his pending motion. Plaintiff may not circumvent venue or court orders by 16 attempting to press his claims in this court. 17 Moreover, because plaintiff’s challenge to his classification under the ADA at 18 Kern Valley State Prison is not cognizable as part of his allegations concerning events that 19 previously took place at High Desert State Prison, this claim will not be given a hearing on the 20 merits at trial, and his motion for injunctive relief should be denied. 21 Insofar as plaintiff alleges his access to the court has been infringed, review of this 22 court’s docket reflects that plaintiff’s access to the court has not been impaired. This court will 23 grant plaintiff an extension of time to file his amended complaint and to provide evidence that he 24 has exhausted his administrative remedies. In any event, most of the evidence plaintiff needs to 25 demonstrate exhaustion of administrative remedies is located in plaintiff’s central file rather than 26 the prison law library. 4 1 In light of the above, IT IS HEREBY ORDERED that plaintiff is granted an 2 extension of thirty days in which to file an amended complaint that complies with the December 3 23, 2009 order; and 4 5 IT IS HEREBY RECOMMENDED that plaintiff’s January 29, 2010 motion for injunctive relief (Docket No. 19) be denied. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 8 one days after being served with these findings and recommendations, plaintiff may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 DATED: February 12, 2010 14 /s/ Kendall J. Newman KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 15 16 elli2985.pi 17 18 19 20 21 22 23 24 25 26 5
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