(PC) Grimes v. Grossjan, No. 2:2017cv02394 - Document 21 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/18/2018 GRANTING 20 Motion to Proceed IFP; DISMISSING 1 Complaint with leave to amend within 30 days from the date of service of this order; and RECOMMENDING defendant CMF be dismissed with prejudice, Plaintiff's claims for due process and equal protection be dismissed with prejudice, and Plaintiff's 19 Motion for a Temporary Restraining Order be denied as moot. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH GRIMES, 12 13 14 15 No. 2:17-cv-2394 MCE DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS M. GROSSJAN, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Before the court are plaintiff’s motion to proceed in forma pauperis, plaintiff’s complaint 19 for screening, and plaintiff’s motion for a temporary restraining order. For the reasons set forth 20 below, the court will grant plaintiff’s motion to proceed in forma pauperis, dismiss the complaint, 21 give plaintiff leave to file an amended complaint, and recommend denial of the motion for a 22 temporary restraining order. 23 24 25 26 IN FORMA PAUPERIS Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must contain 26 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 28 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 7 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 II. 16 Analysis A. Allegations of the Complaint 17 Plaintiff complains of conduct that occurred when he was confined at the California Medical 18 Facility (“CMF”). He identifies two defendants: M. Grossjan, a correctional officer, and CMF. 19 Plaintiff alleges that on February 15, 2017, he was returning from the yard when he was stopped 20 by defendant Grossjan for a patdown search. He complied with the search. When the search was 21 concluded, he attempted to enter the building by crossing the threshold into the unit N1 dayroom. 22 Plaintiff alleges that the threshold is “defective” because a metal piece at the base impedes his 23 ability to pass through on his wheelchair. Because plaintiff did not have someone to push him 24 across the threshold, he reached out to grasp the door’s frame to pull himself through. As he was 25 pulling his wheelchair through the doorway, Grossjan suddenly grabbed the back of the 26 wheelchair and jerked it backwards. This caused plaintiff’s neck to “snap backwards and 27 forwards sharply,” causing injury to plaintiff’s cervical spine. 28 //// 3 1 Plaintiff suffered numbing pain and tingling pain down both arms. He was also unable to 2 turn his neck or hold his head up. He sought medical care for this injury. However, he received 3 no medical care for this injury from anyone at CMF. 4 Plaintiff alleges violations of his Eighth Amendment rights based on the Grossjan’s use of 5 excessive force and CMF’s failure to provide safe access through the doorway and failure to 6 provide medical care. He also alleges due process and equal protection violations. Plaintiff seeks 7 compensatory damages. 8 9 10 11 B. Does Plaintiff State Cognizable Claims? 1. Eight Amendment Excessive Force a. Legal Standards The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments 12 Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). For claims 13 arising out of the use of excessive physical force, the issue is “‘whether force was applied in a 14 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’” 15 Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson, 503 U.S. at 7). The 16 objective component of an Eighth Amendment claim is contextual and responsive to 17 contemporary standards of decency, Hudson, 503 U.S. at 8, and although de minimis uses of 18 force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 19 violates contemporary standards of decency, regardless of whether or not significant injury is 20 evident, Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 U.S. at 9-10). 21 22 b. Excessive Force Claim In the present case, plaintiff fails to allege facts sufficient to show that Grossjan violated his 23 Eighth Amendment rights. Plaintiff states only that Grossjan grabbed his wheelchair and pulled it 24 quickly backwards. He does not explain why Grossjan did so. Nor does plaintiff provide any 25 other basis for this court to find that Grossjan pulled plaintiff backwards with the malicious and 26 sadistic intent to cause him harm. “[Not] every malevolent touch by a prison guard gives rise to 27 a federal cause of action.” Hudson, 503 U.S. at 9 (citation omitted). That is, “[n]ot every push or 28 shove . . . violates a prisoner’s constitutional rights.” Id. (citation omitted). “The Eighth 4 1 Amendment’s prohibition of cruel and unusual punishments necessarily excludes from 2 constitutional recognition de minimis uses of physical force, provided that the use of force is not 3 of a sort repugnant to the conscience of mankind.” Id. at 9–10 (citation omitted). Plaintiff will be 4 provided an opportunity to allege an Eighth Amendment violation against Grossjan in an 5 amended complaint. 6 7 2. Deliberate Indifference to Medical Needs a. Legal Standards 8 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 9 prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. 10 Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither 11 accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and 12 wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by 13 the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 14 What is needed to show unnecessary and wanton infliction of pain “varies according to the 15 nature of the alleged constitutional violation.” Hudson, 503 U.S. at 5 (citing Whitley, 475 U.S. at 16 320). In order to prevail on a claim of cruel and unusual punishment, however, a prisoner must 17 allege and prove that objectively he suffered a sufficiently serious deprivation and that 18 subjectively prison officials acted with deliberate indifference in allowing or causing the 19 deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). 20 If a prisoner's Eighth Amendment claim arises in the context of medical care, the prisoner 21 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference 22 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has 23 two elements: “the seriousness of the prisoner's medical need and the nature of the defendant's 24 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 25 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 26 A medical need is serious “if the failure to treat the prisoner's condition could result in 27 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 28 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 5 1 “the presence of a medical condition that significantly affects an individual's daily activities.” Id. 2 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 3 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 4 825, 834 (1994). 5 If a prisoner establishes the existence of a serious medical need, he must then show that 6 prison officials responded to the serious medical need with deliberate indifference. See Farmer, 7 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, 8 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 9 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 10 11 Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical 12 care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 13 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 14 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 15 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 16 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 17 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 18 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 19 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835. 20 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 21 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 22 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 23 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 24 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 25 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 26 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 27 provide additional support for the inmate's claim that the defendant was deliberately indifferent to 28 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 6 1 Finally, mere differences of opinion between a prisoner and prison medical staff or between 2 medical professionals as to the proper course of treatment for a medical condition do not give rise 3 to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th 4 Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 5 1337, 1344 (9th Cir. 1981). 6 7 b. Medical Claim Plaintiff alleges he requested, and was denied, any medical care for his injuries. Plaintiff 8 identifies only defendant CMF. However, CMF is not a proper defendant in this § 1983 action. 9 Section 1983 requires a showing of a violation committed by a “person acting under the color of 10 state law.” If plaintiff wishes to pursue a claim for the denial of medical care, he must identify a 11 person or persons who were responsible for failing to provide that care. Plaintiff will be given the 12 opportunity to file an amended complaint to state a claim for deliberate indifference to his serious 13 medical needs. 14 3. 15 Due Process and Equal Protection a. Legal Standards 16 Under the Due Process Clause of the Fourteenth Amendment, the state cannot “deprive any 17 person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. A 18 due process claim requires a constitutionally protected liberty or property interest. Ingraham v. 19 Wright, 430 U.S. 651, 672 (1977). “Constitutionally protected liberty interests can arise under 20 either state law or the Due Process Clause.” Duffy v. Riveland, 98 F.3d 447, 456-57 (9th Cir. 21 1996) (citing Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987)). The Constitution 22 itself does not confer on inmates a liberty interest in avoiding the more adverse conditions of 23 confinement. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citing Meachum v. Fano, 427 U.S. 24 215, 225 (1976)). 25 The Equal Protection Clause requires that persons who are similarly situated be treated alike. 26 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. Calif. 27 Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 28 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal 7 1 protection claim may be established by showing that defendants intentionally discriminated 2 against plaintiff based on his membership in a protected class, Hartmann, 707 F.3d at 1123, or 3 that similarly situated individuals were intentionally treated differently without a rational 4 relationship to a legitimate state purpose, Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 5 601–02 (2008). An Equal Protection claim may also exist where a policy that is neutral on its 6 face has a disproportionate, or “disparate,” impact on an identifiable group. Village of Arlington 7 Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66 (1977). 8 9 Disability is not a suspect class for Equal Protection purposes. Pierce v. County of Orange, 526 F.3d 1190, 1225 (9th Cir. 2008). In determining whether a disabled inmate is similarly 10 situated to non-disabled inmates, the Court should ask “whether the disabled plaintiff is equally 11 capable for the purpose at issue.” Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997), see also 12 Clark v. California, No. C 96–1486 FMS, 1998 WL 242688, *4–5 (N.D. Cal. May 11, 1998) 13 (where developmentally disabled prisoners lacked skills to fill out forms, thereby limiting their 14 access to medical care and educational programming, for purposes of Equal Protection analysis 15 they were not similarly situated to non-developmentally disabled prisoners). Claims brought 16 under any theory must satisfy the intent requirement, that is, the plaintiff must show that some 17 discriminatory purpose underlies the policy. See Village of Arlington Heights, 429 U.S. at 264- 18 66; Pierce, 526 F.3d at 1225. 19 b. Plaintiff’s Fourteenth Amendment Claims 20 Plaintiff fails to allege claims under either the Due Process or Equal Protection Clauses. He 21 does not allege that he was deprived of his liberty or property without due process of law. To the 22 extent he is arguing that the prison failed to make a record of his injuries, that does not involve 23 due process concerns and is covered by his claim for deliberately indifferent medical care. With 24 respect to plaintiff’s citation to the equal protection clause, he fails to show any sort of intentional 25 discrimination. These claims should be dismissed without leave to amend. 26 27 28 C. Filing an Amended Complaint If plaintiff wishes to continue with this action, he must file an amended complaint that addresses the problems with his complaint that are explained above. Plaintiff is advised that in an 8 1 amended complaint he must clearly identify each defendant and the action that defendant took 2 that violated his constitutional rights. The court is not required to review exhibits to determine 3 what plaintiff’s charging allegations are as to each named defendant. If plaintiff wishes to add a 4 claim, he must include it in the body of the complaint. The charging allegations must be set forth 5 in the amended complaint so defendants have fair notice of the claims plaintiff is presenting. 6 That said, plaintiff need not provide every detailed fact in support of his claims. Rather, plaintiff 7 should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 8 Any amended complaint must show the federal court has jurisdiction, the action is brought in 9 the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a 10 request for particular relief. Plaintiff must identify as a defendant only persons who personally 11 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 12 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 13 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 14 legally required to do that causes the alleged deprivation). 15 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. 16 Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. 17 Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 18 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 19 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 20 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 21 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 22 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 23 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 24 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 25 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 26 An amended complaint must be complete in itself without reference to any prior pleading. 27 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 28 //// 9 1 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 2 evidentiary support for his allegations, and for violation of this rule the court may impose 3 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 4 MOTION FOR TEMPORARY RESTRAINING ORDER 5 I. Legal Standards 6 A party requesting preliminary injunctive relief must show that “he is likely to succeed on 7 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 8 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 9 Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief 10 hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean 11 Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). 12 Alternatively, under the so-called sliding scale approach, as long as the plaintiff 13 demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the 14 public interest, a preliminary injunction may issue so long as serious questions going to the merits 15 of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for 16 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the 17 “serious questions” version of the sliding scale test for preliminary injunctions remains viable 18 after Winter). 19 The principal purpose of preliminary injunctive relief is to preserve the court’s power to 20 render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R. 21 Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is 22 that the relief awarded is only temporary and there will be a full hearing on the merits of the 23 claims raised in the injunction when the action is brought to trial. Preliminary injunctive relief is 24 not appropriate until the court finds that the plaintiff’s complaint presents cognizable claims. See 25 Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court 26 may issue an injunction if it has personal jurisdiction over the parties and subject matter 27 jurisdiction over the claims . . . .”). 28 //// 10 1 In cases brought by prisoners involving conditions of confinement, any preliminary 2 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 3 court finds requires preliminary relief, and be the least intrusive means necessary to correct that 4 harm.” 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action 5 is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 6 (1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in 7 which he is not designated as a party . . . .”).1 8 II. Analysis 9 Plaintiff, who is now incarcerated at R.J. Donovan Correctional Facility in San Diego, 10 contends that he has been in administrative segregation for a month and during that time has been 11 denied his legal paperwork and the prison has failed to provide him with a copy of his trust 12 account statement. (ECF No. 19.) It appears that plaintiff is asking the court to order the prison 13 to provide that statement so that plaintiff may file it in this case. However, the court does not 14 require a copy of plaintiff’s trust account statement. The prison provided the court with copy of 15 that statement in November 2017. (ECF No. 5.) The court’s recent orders were an attempt to 16 have plaintiff file a signed affidavit in support of his request to proceed in forma pauperis. On 17 August 16, plaintiff did file a signed affidavit. As stated above, his request to proceed in forma 18 pauperis is now complete and will be granted. Accordingly, plaintiff’s request for injunctive 19 relief is moot. 20 CONCLUSION 21 22 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows: 23 24 25 26 27 28 1 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. § 1651(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). 11 1 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 20) is granted. 2 2. Plaintiff’s complaint is dismissed with leave to amend. 3 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 4 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 5 of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear 6 the docket number assigned this case and must be labeled “First Amended Complaint.” 7 Plaintiff’s failure to file an amended complaint within the time provided, or otherwise 8 respond to this order, may result in dismissal of this case. 9 10 4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form used in this district. 11 Further, IT IS RECOMMENDED that: 12 1. Defendant CMF be dismissed from this action with prejudice. 13 2. Plaintiff’s claims for due process and equal protection be dismissed from this action with 14 prejudice. 15 3. Plaintiff’s motion for a temporary restraining order (ECF No. 19) be denied as moot. 16 These findings and recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, plaintiff may file written objections 19 with the court. The document should be captioned “Objections to Magistrate Judge's Findings 20 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 21 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 Dated: September 18, 2018 24 25 26 27 DLB:9 DLB1/prisoner-civil rights/grim2394.scrn 28 12
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