-CKD (PC) Becker v. Henkel et al, No. 2:2011cv01967 - Document 28 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/20/11 RECOMMENDING that 2 MOTION for Preliminary Injunction and 9 AMENDED Motion for Preliminary Injunction filed by Joseph Becker be denied as moot and that the 1 Complaint be dismissed for lack of subject matter jurisdiction. Referred to Judge John A. Mendez; Objections to F&R due within 21 days after being served with these findings and recommendations; replies due 14 days after service of objections. (Meuleman, A)
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-CKD (PC) Becker v. Henkel et al Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH BECKER, Plaintiff, 11 12 13 No. S-11-1967 JAM CKD P vs. K. HENKEL, et al., FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to 42 16 17 U.S.C. § 1983. This case proceeds on the original complaint filed July 26, 2011. Pending before 18 the court is plaintiff’s July 26, 2011 motion for preliminary injunction, as amended by additional 19 papers seeking a preliminary injunction filed on August 23, 2011.1 (Dkt. Nos. 1, 9.) The 20 gravamen of these motions is that, in retaliation for protected First Amendment activities, one or 21 more of the named defendants is denying plaintiff adequate law library access and has caused 22 him to be placed in administrative segregation without his legal materials, such that plaintiff 23 cannot prepare to defend a federal court’s grant of habeas corpus relief to plaintiff that is being 24 25 26 1 As noted in the court’s September 8, 2011 order, the court reviews the motion and amended motion in conjunction, as plaintiff apparently intended the latter to supplement the former, and both concern the issue described above. 1 Dockets.Justia.com 1 appealed in the Ninth Circuit Court of Appeals. 2 On September 8, 2011, this court found that plaintiff stated a cognizable claim 3 that his right to access the courts was being violated2, and ordered the complaint served on all 4 defendants. The court further ordered defendant Warden Knipp to respond to plaintiff’s motion 5 for preliminary injunction and ascertain whether plaintiff was being denied his legal right of 6 access to the courts by the named defendants or anyone else. (Dkt. No. 11.) On September 26, 7 2011, defendants filed an opposition to the motion for preliminary injunction. (Dkt. No. 18.) On 8 November 10, 2011, plaintiff filed a reply. (Dkt. No. 27.) For the reasons set forth below, the 9 court will recommend that plaintiff’s motion for preliminary injunction be denied as moot. 10 Moreover, because plaintiff’s forward-looking access to courts claim has been resolved by events 11 subsequent to his filing of the complaint in July 2011, the court will recommend that this action 12 be dismissed for lack of subject matter jurisdiction. 13 I. Plaintiff’s Motions Plaintiff’s July 26, 2011 complaint alleged that, despite plaintiff’s priority legal 14 15 user (PLU) status, prison law librarian Henkel and correctional officers Garcia and Colston were 16 denying him law library access for “no legitimate reason” and preventing him from litigating the 17 appeal of his federal habeas grant. (Dkt. No. 1 at 6-7.) In his concurrent motion for preliminary 18 injunction, plaintiff asserted that “unless this Court intervenes, plaintiff’s right to pursue the 19 appeal of his granted habeas corpus will be severely hindered by unlawful interference by state 20 employees at Mule Creek State Prison.” (Dkt. No. 2 at 2.) Plaintiff asserted that he was “being 21 singled out for being subjected to harassment, and set up for situation to deny me entry to the law 22 library and/or use of the computer.” (Id. at 4.) He sought the relief of “ten hours per week of 23 computer use” to conduct research pertaining to his habeas appeal. 24 25 26 2 While plaintiff alleges retaliation in his motions for preliminary injunction, the complaint does not allege retaliation but focuses on plaintiff’s lack of law library access despite his PLU status and pending federal appeal. (Dkt. No. 1.) 2 1 On August 23, 2011, plaintiff filed an amended motion for preliminary injunction, 2 apparently intended as a supplement to his original motion, alleging that defendant Henkel 3 retaliated against him on August 17, 2011 for his attempt to use the law library. Plaintiff alleged 4 that, on that day, he was placed in administrative segregation without legal materials, and that all 5 his “legal property and books are now withheld, as a direct result of” the claimed retaliation. 6 (Dkt. 9 at 2.) As additional relief, plaintiff asked that the court order defendants to show cause 7 why plaintiff is being “held unlawfully in ad-seg” and being “unlawfully denied the capability to 8 pursue his pro se appeal in federal court[.]” (Id. at 2-3.) Also on August 23, 2011, plaintiff filed 9 a notice stating that all of his legal property was being withheld indefinitely. (Dkt. No. 10.) 10 11 II. Defendants’ Opposition Defendants argue that the record reflects that plaintiff has been able to zealously 12 pursue his claims, had ample access to the law library, and has not demonstrated that the acts 13 complained of have or will, in any cognizable way, threaten his right of access to the courts. 14 Defendants confirm that plaintiff’s application for federal habeas relief was 15 granted in part in Becker v. Martel, CIV S-10-1209 (AJB) (S.D. Cal. April 29, 2011), and 16 plaintiff’s conviction was ordered reversed. Respondent Martel appealed the district court’s 17 ruling on May 9, 2011 and filed his opening brief on September 19, 2011. (Dkt. No. 18-1 at 2-3.) 18 Becker is proceeding pro se. His answering brief was due on October 19, 2011. (Id. at 2.) 19 Defendants state that, following respondent Martel’s notice of appeal, plaintiff was placed on 20 priority legal user (PLU) status and was entitled to a minimum of four hours per week of law 21 library access. (Dkt. No. 18 at 2, citing Cal. Code of Regs. tit. 15, § 3123(b).) Defendants have 22 submitted records indicating that, in June 2011, plaintiff received 50.25 hours of library access 23 and in July 2011, he received 40.45 hours access, well above the required four hours per week. 24 (Dkt. No. 18-1 at 6-12.) Prison records further indicate that, in August 2011, plaintiff received 25 28.15 hours of library access prior to being removed from the library on August 16, 2011 and 26 placed in administrative segregation on August 17, 2011. (Id. at 18, 65-68.) In a statement 3 1 signed and dated August 16, 2011, defendant Henkel explained that she instructed plaintiff to 2 leave the library immediately after he became belligerent, broke a computer desk, and threatened 3 to “cut [her] up into little pieces.” (Id. at 65.) An August 17, 2011 administrative segregation 4 placement notice states that plaintiff was placed in ad-seg for being “aggressive and disruptive” 5 regarding his access to the law library and for threatening defendant Henkel. (Id. at 67.) 6 As to plaintiff’s ability to access his legal materials and litigate the appeal of his 7 federal habeas grant while in ad-seg, defendants have submitted a declaration by K. Whitehead, 8 an administrative segregation sergeant at Mule Creek State Prison, stating that, on September 25, 9 2011, following an inquiry from the Office of the Attorney General, plaintiff was escorted to a 10 holding cell, “where [he] was allowed to go through all of his legal materials. Becker was given 11 an opportunity to retrieve the items that he wanted out of his legal property, and that he indicated 12 were necessary to assist him with his current filing deadline.” (Dkt. 18-1 at 70-71.) Defendants 13 additionally point out that in both the instant action and in plaintiff’s habeas appeal, plaintiff has 14 met his court deadlines and diligently litigated his case, including filing two motions in the 15 habeas case since respondent Martel filed his notice of appeal. (Dkt. No. 18 at 6.) In reply, plaintiff does not deny that he was given access to his legal materials on 16 17 September 25, 2011. Rather, he asserts that he was placed into administrative segregation 18 without cause and that defendant Henkel’s statements about the events of August 16, 2011 are 19 untrue. (Dkt. No. 27.) Notably, given that this action proceeds on plaintiff’s access to courts 20 claim, plaintiff asserts: “This case is not about how plaintiff did or will suffer denial of access to 21 the courts.” Rather, he states, this action concerns defendants’ retaliation for plaintiff’s legal 22 activity by placing him in administrative segregation. Plaintiff also requests a new form of 23 injunctive relief: release from administrative segregation and a return to the “B” facility at Mule 24 Creek State Prison. (Id. at 4-5.) 25 \\\\ 26 \\\\ 4 1 III. Discussion The legal principles applicable to a request for injunctive relief are well 2 3 established. To prevail, the moving party must show either a likelihood of success on the merits 4 and the possibility of irreparable injury, or that serious questions are raised and the balance of 5 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 6 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 7 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 8 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 9 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 10 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 11 court need not reach the issue of likelihood of success on the merits. Id. Here, the undersigned concludes that plaintiff’s request for injunctive relief has 12 13 been rendered moot by recent events. Following the appeal of his grant of federal habeas relief, 14 plaintiff was provided ample time in the prison law library until he was placed in administrative 15 segregation for, according to prison records, disruptive and threatening behavior. On September 16 25, 2011, well in advance of his October 19, 2011 deadline in the habeas appeal, plaintiff was 17 allowed to retrieve his legal materials. Indeed, a review of the docket in plaintiff’s habeas appeal 18 indicates that, after requesting and receiving an extension of time to file his answering brief, he 19 filed it on October 25, 2011.3 This perhaps explains why, in his November 10, 2011 reply, 20 plaintiff’s access to legal materials was no longer presented as an urgent or even important issue; 21 by that time, plaintiff simply wanted to be released from ad-seg. Based on the above, the court 22 finds that plaintiff’s motion for preliminary injunction should be denied as moot. Moreover, this case proceeds solely on plaintiff’s forward-looking access-to- 23 24 courts claim, for which plaintiff sought only injunctive relief. (Dkt. No. 1 at 3.) The court earlier 25 3 26 The undersigned takes judicial notice of these court records. See Fed.R.Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 333 (9th Cir. 1993). 5 1 found this claim was cognizable because it alleged “the frustration or hindrance of a ‘litigating 2 opportunity yet to be gained’” – namely, the opportunity to defend his federal habeas grant on 3 appeal. (Dkt. No. 11, citing Christopher v. Harbury, 536 U.S. 403, 415-416.)4 Based on the 4 record before the court and in light of the fact that plaintiff has been provided legal materials and 5 was able to file an answering brief in his habeas appeal, plaintiff no longer appears to have a 6 cognizable forward-looking access claim. Indeed, plaintiff himself now states that “This case is 7 not about how plaintiff did or will suffer denial of access to the courts.” (Dkt. No. 27 at 4.) Accordingly, the undersigned will recommend that this case be dismissed for lack 8 9 of subject matter jurisdiction. Federal courts are courts of limited jurisdiction and may 10 adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 11 U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136–37 (1992). Lack of subject 12 matter jurisdiction may be raised by the court at any time during the proceedings.5 Attorneys 13 Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594–95 (9th Cir. 1996). The burden of 14 establishing jurisdiction rests upon plaintiff as the party asserting jurisdiction. Kokkonen, 511 15 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974) (acknowledging that a claim 16 may be dismissed for lack of jurisdiction if it is “so insubstantial, implausible, ... or otherwise 17 completely devoid of merit as not to involve a federal controversy within the jurisdiction of the 18 District Court”); Bell v. Hood, 327 U.S. 678, 682–83 (1946) (recognizing that a claim is subject 19 to dismissal for want of jurisdiction where it is “wholly insubstantial and frivolous” and so 20 patently without merit as to justify dismissal for lack of jurisdiction). Here, the undersigned is 21 satisfied that plaintiff has been able to access the prison law library and his own legal materials 22 sufficiently to defend his grant of habeas relief in the Ninth Circuit Court of Appeals. 23 4 24 25 In its September 8, 2011 order, this court discussed the legal standard for a constitutional access to courts claim as applied to the facts here. (Dkt. No. 11 at 2-4.) 5 . Here, defendants Colston, Garcia, Henkel and Knipp have recently executed waivers of service. (Dkt. No. 26.) 26 6 1 Accordingly, IT IS HEREBY RECOMMENDED THAT: 2 1. Plaintiff’s motion and amended motion for preliminary injunction (Dkt. Nos. 2 3 and 9) be denied as moot; and 4 2. The complaint (Dkt. No. 1) be dismissed for lack of subject matter jurisdiction. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 7 one days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within fourteen days after service of the objections. The parties are 11 advised that failure to file objections within the specified time may waive the right to appeal the 12 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: November 20, 2011 14 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 2 beck1967.pi 19 20 21 22 23 24 25 26 7