(PC) Gipbsin v. Kernan, et al, No. 2:2012cv00556 - Document 217 (E.D. Cal. 2018)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/20/2018 DENYING without prejudice plaintiff's 183 motion to renew all pretrial motions and DENYING plaintiff's 207 motion to compel. IT IS RECOMMENDED that plaintiff's 206 , 210 , 213 , 215 motions for injunctive relief be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days. (Yin, K)
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(PC) Gipbsin v. Kernan, et al Doc. 217 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE A. GIPBSIN, 12 Plaintiff, 13 14 15 v. SCOTT KERNAN, et al., No. 2:12-cv-0556 KJM DB P ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983. Plaintiff alleges defendants failed to transfer him to a mental 19 health facility pursuant to a superior court order. Plaintiff is currently housed at California State 20 Prison – Sacramento (“CSP-SAC”). Presently before the court is a motion to renew all pretrial 21 motions (ECF No. 183), a motion to compel (ECF No. 207), and multiple motions for injunctive 22 relief (ECF Nos. 206, 210, 213, 215). For the reasons set forth below the court will deny the 23 motion to renew all pretrial motions and the motion to compel, and will recommend all motions 24 for injunctive relief be denied. 25 MOTION TO RENEW ALL PRETRIAL MOTIONS 26 Plaintiff requests all previously filed pretrial motions be renewed, including all the 27 exhibits in the Third Amended Complaint. (ECF No. 183.) Plaintiff then identifies, by name, the 28 following motions: (1) motion for pre-trial statement; (2) motion for pre-trial conference; (3) Dockets.Justia.com 1 motion for settlement pretrial conference; and (4) motion for pretrial hearing. 2 3 The court will deny as premature the motion to renew all pretrial motions. Plaintiff may renew any motions related to trial should his claim survive summary judgment. 4 MOTION TO COMPEL 5 Plaintiff moves to compel defendants to respond to plaintiff’s allegations that he is 6 illegally confined. (ECF No. 207.) Plaintiff claims he is being imprisoned for a crime that did 7 not occur and two attorneys resigned based on plaintiff’s wrongful conviction. Plaintiff requests 8 that the court order defendants to show plaintiff is legally confined. The legality of plaintiff’s 9 confinement is not at issue in this case, and a § 1983 action is not the proper vehicle in which to 10 challenge the fact of plaintiff’s confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) 11 (A § 1983 action is not the proper remedy for a prisoner to challenge the fact or length of his 12 custody). Accordingly, the court will deny plaintiff’s motion to compel. 13 MOTIONS FOR INJUNCTIVE RELIEF 14 I. 15 This case proceeds on plaintiff’s third amended complaint (ECF No. 164) filed December Background 16 29, 2016 following the court’s order granting defendants’ motion for judgment on the pleadings. 17 Plaintiff’s claims involve his allegations that defendant violated his Eighth Amendment rights 18 when they failed to comply with a court order committing him to Atascadero State Prison. 19 Since January 22, 2018, plaintiff has filed four motions for injunctive relief (ECF Nos. 20 206, 210, 213, 215) and several other documents labeled as letters, notices, or declarations (ECF 21 Nos. 208, 209, 212, 216) regarding conditions at CSP-SAC. At issue in this suit are plaintiff’s 22 allegations that prison officials failed to comply with a superior court order to send him to 23 Atascadero State Hospital and instead housed him at High Desert State Prison and Corcoran State 24 Prison. (ECF No. 164.) All of plaintiff’s recent filings detail plaintiff’s grievances regarding his 25 current conditions of confinement at CSP-SAC. 26 //// 27 //// 28 //// 2 1 2 II. 3 The following are plaintiff’s outstanding motions for injunctive relief: Plaintiff’s Motions • 4 January 22, 2018 “MOTION FOR TEMPORARY RESTRAINING 5 ORDER.” Plaintiff lists complaints regarding his present housing situation 6 and his reluctance to accept a cellmate. (ECF No. 206.) He requests a 7 temporary restraining order transferring him to another EOP 1 facility. 8 Plaintiff also requests sanctions against the CDCR Director and Associate 9 Director for each of the rules violation he has received during the pendency 10 • 11 of this action. January 29, 2018 “MOTION FOR PRELIMINARY INJUNCTION AND 12 MOTION FOR TEMPORARY RESTRAINING ORDER.” Plaintiff states 13 he was removed from A-yard and moved back to B-yard and placed in a 14 dirty cell. Plaintiff requested that the court conduct an inspection of the 15 cell and the EOP building where plaintiff is housed. He also requested that 16 the court ask all the EOP inmates questions regarding their housing 17 conditions. (ECF No. 210 at 3.) • 18 March 5, 2018 “MOTION FOR TEMPORARY RESTRAINING 19 ORDER.” Plaintiff states that on February 28, 2018 or March 1, 2018 he 20 was removed from administrative segregation by correctional officers. 21 (ECF No. 213.) He states these officers put him on the ground, kneed 22 plaintiff in the back of his head and his sides approximately eight times, 23 then tied plaintiff down and took him to B-yard facility and refused to 24 document his injuries. Plaintiff further claims he was placed in a cell that 25 previously housed an inmate who was sent to the hospital to be treated for 26 27 28 1 EOP is the abbreviation for Enhanced Outpatient Program, which is a prison mental health care program designation. Cal. Code Regs., tit. 15, § 3040.1(d); Coleman v. Brown, 28 F. Supp. 3d 1068, 1075 (E.D. Cal. 2014). 3 1 tuberculosis. He states officers attempted to place him in a cell with an 2 inmate who threatened to assault him. Plaintiff alleges he received food 3 with tobacco spit in it. It is unclear what relief plaintiff seeks. • 4 March 14, 2018 “MOTION FOR TEMPORARY RESTRAINING 5 ORDER.” Plaintiff requests the court issue a temporary or permanent 6 restraining order to stop ongoing abuses by CDCR officials. (ECF No. 215 7 at 1.) Plaintiff claims officers are putting pepper spray in his food, that 8 officers placed him in an outdoor holding cell with his hands cuffed behind 9 his back, and left him there overnight without food or water while it was 10 raining. Plaintiff attached a notice of administrative segregation placement 11 to his motion. (ECF No. 215 at 3.) The notice states plaintiff was placed 12 in administrative segregation because he refused to return to his assigned 13 cell, refused to exit a holding cell for twenty-two hours, and continuously 14 refused assigned housing. (Id.) Plaintiff also filed a rules violation report 15 stating that on February 28, 2018 he resisted officers attempting to escort 16 him to a new housing assignment. (ECF No. 216 at 2.) 17 III. 18 A temporary restraining order is an extraordinary measure of relief that a federal court Legal Standards 19 may impose without notice to the adverse party only if, in an affidavit or verified complaint, the 20 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 21 movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). 22 Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary 23 restraining order shall be granted in the absence of actual notice to the affected party and/or 24 counsel[.]” In the absence of such extraordinary circumstances, the court construes a motion for 25 temporary restraining order as a motion for preliminary injunction. See, e.g., Aiello v. One West 26 Bank, No. 2:10-cv-0227 GEB EFB, 2010 WL 406092, at 1-2 (E.D. Cal. Jan. 29, 2010). 27 A party requesting preliminary injunctive relief must show that “he is likely to succeed on 28 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 4 1 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 2 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief 3 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean 4 Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). 5 Alternatively, under the so-called sliding scale approach, as long as the plaintiff 6 demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the 7 public interest, a preliminary injunction may issue so long as serious questions going to the merits 8 of the case are raised and the balance of the hardships tips sharply in plaintiff’s favor. Alliance 9 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the 10 “serious questions” version of the sliding scale test for preliminary injunctions remains viable 11 after Winter). 12 The principle purpose of preliminary injunctive relief is to preserve the court’s power to 13 render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R. 14 Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is 15 that the relief awarded is only temporary and there will be a full hearing on the merits of the 16 claims raised in the injunction when the action is brought to trial. Preliminary injunctive relief is 17 not appropriate until the court finds that the plaintiff’s complaint presents cognizable claims. See 18 Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court 19 may issue an injunction if it has personal jurisdiction over the parties and subject matter 20 jurisdiction over the claims . . . .”). 21 In cases brought by prisoners involving conditions of confinement, any preliminary 22 injunction must be narrowly drawn, extend no further than necessary to correct the harm the court 23 finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 24 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action is 25 strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 26 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in 27 28 5 1 which he is not designated as a party . . . .”). 2 2 IV. 3 All of the pending motions for injunctive relief are based on plaintiff’s complaints 4 regarding his confinement at CSP-SAC. However, plaintiff’s confinement at CSP-SAC is not the 5 subject of this action. In this action, plaintiff alleges defendants failed to comply with a Lassen 6 County Superior Court order to transfer him to Atascadero State Hospital. 7 Analysis The court has previously denied plaintiff’s request for court orders related to his dental 8 care at CSP-SAC. (See ECF Nos. 160, 161, 184.) The court denied those requests because they 9 were unrelated to the allegations of plaintiff’s underlying complaint. The same is true with 10 respect to the present motions. It is improper for the court to grant the relief plaintiff seeks in 11 these motions because it is unrelated to the allegations at issue in this case. See Pacific Radiation 12 Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (holding there must be a 13 “sufficient nexus between the claims raised in a motion for injunctive relief and the claims set 14 forth in the underlying compliant itself.”). 15 Plaintiff is again advised that if he feels his treatment amounts to a violation of his civil 16 rights under 42 U.S.C. § 1983, he may seek relief through the grievance and appeal process at the 17 prison. Once he has exhausted all of his administrative remedies, plaintiff may seek help from 18 the courts by filing a new action regarding his conditions of confinement at CSP-SAC. 19 For the reasons set forth above the court will recommend that plaintiff’s requests for 20 injunctive relief be denied. 21 //// 22 //// 23 24 25 26 27 28 2 However, the fact that injunctive relief is sought from one not a party to litigation does not automatically preclude the court from acting. The All Writs Act, 28 U.S.C. § 16519(a) permits the court to issue writs “necessary or appropriate in aid of their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances against persons or entities not a party to the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977). 6 1 //// 2 //// 3 //// 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motion to renew all pretrial motions (ECF No. 183) is denied without 7 prejudice; and 8 2. Plaintiff’s motion to compel (ECF No. 207) is denied. 9 IT IS HEREBY RECOMMENDED that plaintiff’s motions for injunctive (ECF Nos. 206, 10 11 210, 213, 215) relief be denied. These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 objections shall be served and filed within fourteen days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: March 20, 2018 20 21 22 23 24 25 26 DLB:12 DLB1/Orders/Prisoner-Civil Rights/gipb0556.prelim.injs 27 28 7
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