Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. California

October 18, 2005.

W.R. ADAMS, Lieutenant; C. SIMS, Correctional Officer, Defendants.

The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint in the United States District Court for the Northern District of California on February 26, 2003 [doc. no. 1], pursuant to 42 U.S.C. § 1983. On March 10, 2003, Govind's Complaint was transferred to this district [doc. no. 1].

On June 7, 2004, Plaintiff filed a First Amended Complaint [doc. no. 31], against Defendants Lieutenant Adams and Correctional Officer Sims, both California Department of Corrections ("CDC") employees at Richard J. Donovan Correctional Facility ("Donovan") at the time of the events giving rise to the Complaint. Govind alleges that both Defendants deliberately denied him adequate medical care in violation of the Eighth Amendment, violated his rights to freedom of religion and freedom of speech under the First Amendment, engaged in racial discrimination, deprived Plaintiff of his property in violation of his due process rights, deprived him of access to courts, and violated his rights to freedom of association and freedom from cruel and unusual punishment by placing him in administrative segregation ("Ad. Seg."). (First Am. Compl. 3-5.) Govind was transferred from Donovan and arrived at High Desert State Prison in Susanville, California ("High Desert") on March 28, 2005 (Mot. Inj. 3, 7.)

  Less than six weeks later, on May 6, 2005, Plaintiff filed the present Motion for an Injunction Order Preventing from Discrimination/Retaliation and Court Order for Immediate Transfer to Medical Facility [doc. no. 46]. From his papers, it is unclear whether Govind is requesting a transfer to any medical facility or is requesting a transfer to the facility at San Luis Obispo or Vacaville. (Mot. Inj. 2.) Defendant Sims filed an Opposition to Plaintiff's Motion on July 29, 2005 [doc. no. 56].

  Sims opposes Plaintiff's Motion for Injunction on three grounds: (1) Govind has failed to present any evidence establishing that he is facing harmful conditions at High Desert or that High Desert officials are deliberately indifferent to his medical needs or incapable of providing necessary care; (2) Plaintiff does not have a protected liberty interest in the place of his confinement under the Due Process Clause of the Fourteenth Amendment; and (3) Govind has failed to exhaust his administrative remedies regarding conditions at High Desert as required by 42 U.S.C. § 1997e(a). (Opp'n 3, 5-6.) Defendant Adams is not a party to this action because he has not been served. [Doc. no. 7.] Plaintiff filed a belated reply in support of his Motion, titled "Objection to Defendant's Motion for an [sic] Permanent Injunction and Order of Transfer," on September 7, 2005 [doc. no. 62].


  Incarcerated since 1996 (Objection Ex. D at 7), Plaintiff was transferred to Donovan in May of 2000; he has a history of physical ailments, including pneumonia, type 2 diabetes mellitus, asthma, and tuberculosis. (Mot. Inj. 20-23 (discharge summaries from Natividad Medical Center and Alvarado Hospital, dated December 19, 1999, and September 29, 2000); First Am. Compl. 8.) Because of his physical condition and Hindu faith, Govind says he arrived at Donovan with "chronos" (written notations in an inmate's file) for lower level cell placement, restricted work assignments, and extra food to accommodate the diet necessitated by his religious beliefs. (First Am. Compl. 3-4, 8, 11-12, Ex. 1; see also Answer Ex. B at 112 n. 2.)

  Plaintiff alleges that while he was at Donovan, Defendants targeted him by refusing to honor his chronos, destroying his property (including legal documents), and engaging in racial discrimination. (First Am. Compl. 3-5, 8-12, 14, 16.) Govind claims he was assigned to yard crew for three years despite restrictions prohibiting him from work involving exposure to wind, dust, smoke, fumes, extensive humidity, paint, woodworking, molds, grass, brush, weeds, cold environment, or inclement weather. (Id. at 10; Mot. Inj. 16.) Plaintiff also alleges Defendants took his extra food chrono on more than one occasion and at other times either refused to let him use it or punished him for using it. (First Am. Compl. 8-9, 11, 13.) Defendant Sims argues that Plaintiff's chrono for extra food was rescinded by Dr. Choo one month after it was issued because Govind had been misusing the chrono by giving his extra food to other inmates, raising the concern that he was selling or bartering food in violation of prison regulations. (Answer Ex. B at 112 n. 3.)

  Plaintiff claims he was housed in violation of his chrono restricting placement to a lower bunk on the lower tier of the prison when he was placed in Ad. Seg. (Mot. Inj. 11; First Am. Compl. 12.) Additionally, Govind asserts the ill treatment he received at Donovan exacerbated his medical conditions, resulting in numerous hospitalizations. (First Am. Compl. 15.)

  Plaintiff further alleges that unsubstantiated charges were filed against him at Donovan regarding forged medical chronos. (Id. at 5, 14.) However, on April 3, 2002, a hearing was held at which he was found guilty of falsifying medical chronos, and on May 2, 2003, the California Court of Appeal denied Govind's habeas petition which challenged that disciplinary finding. (Answer Ex. A at 7.) The court of appeal stated that due process requires only that "some" evidence support the decision of a prison disciplinary board. (Id. (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985).) "The record show[ed] prison officials investigated their records and determined their staff had not issued the documents. That is some evidence to support the finding." (Id.) Plaintiff claims he was transferred from Donovan to Folsom State Prison ("Folsom") in January of 2003 in retaliation for stating he planned to file a civil rights lawsuit against Defendants. (First Am. Compl. 15-16; Mot. Inj. 4.)

  At Folsom, Govind was medically evaluated and found to have permanent hearing, mobility, and vision impairments affecting his placement at the CDC institutions. (Mot. Inj. 7, 11, 13.) On November 3, 2004, Plaintiff was approved for a transfer to Substance Abuse Treatment Facility and State Prison in Corcoran ("Corcoran") or, alternatively, to California Medical Facility in Vacaville ("Vacaville"). (Id. at 14); see also California Department of Corrections and Rehabilitation: Substance Abuse Treatment Facility and State Prison, Corcoran, gov/Institutions Div/INSTDIV/facilities/fac_prison_SATF.asp (last visited Sept. 6, 2005); California Department of Corrections and Rehabilitation: California Medical Facility, gov/Institutions Div/INSTDIV/facilities/fac_prison_CMF.asp (last visited Sept. 13, 2005). However, at the time, Corcoran was closed to new inmates. (Mot. Inj. 7, 15.) On November 22, 2004, the Department of Corrections notified Folsom and Plaintiff that Vacaville was also closed to new inmates, and the transfer approval would expire on March 22, 2005. (Id. at 15.)

  On February 23, 2005, the Folsom Unit Classification Committee rescinded its November 3, 2004, action endorsing Govind for transfer to Corcoran or Vacaville. (Id. at 7.) Instead, the Committee recommended that Plaintiff be transferred to either California Men's Colony ("CMC" in San Luis Obispo) or Corcoran, both of which qualified as Disability Placement Plan ("DPP") facilities. (Id.); see also California Department of Corrections and Rehabilitation: California Men's Colony, http://www.corr. (last visited Sept. 13, 2005); California Department of Corrections and Rehabilitation: Information Security Office Glossary — D, InfoSecurity/resources/Glossary/GLOS_D.asp (last visited Sept. 6, 2005). On that date, the Committee at Folsom also designated Govind as medically disabled and changed his work assignment status. (Mot. Inj. 7.)

  On March 15, 2005, Plaintiff was approved for a transfer to High Desert. (Id. at 16.) The record is unclear as to why Govind was not transferred to CMC. Plaintiff claims it was a retaliatory act by correctional officers at Folsom, aimed at punishing Govind for filing too many administrative appeals and intended to cause "his spouse and Kids . . . never [to] be able to visit and he would die there in pain and sufferings [sic]." (Id. at 4-5.)

  However, High Desert includes a Correctional Treatment Center which "provide[s] for the health care needs of the inmates[,]" and it "is designed to house inmates with disabilities who require specialized placement. . . ." California Department of Corrections and Rehabilitation: High Desert State Prison, prison_HDSP.asp (last visited Sept. 13, 2005). In response to a letter from Govind, the warden at High Desert indicated that it has medical facilities equivalent to CMC, and it had space available at the time. (See Objection Ex. D at 18-19.) Govind arrived at High Desert on March 28, 2005. (Mot. Inj. 3; Roche Dec 1, 2.) Govind requests that the Court issue an injunction prohibiting discriminatory and retaliatory behavior toward him and order his immediate transfer from High Desert to one of two medical facilities — either CMC in San Luis Obispo, California, or CMF in Vacaville, California. (Mot. Inj. 1-2.) He also asserts he should not be housed at a level IV prison because he is a level III prisoner. (Id. at 3, 12, 16.) Contrary to Plaintiff's assertion, High Desert houses both level III and level IV prisoners. California Department of Corrections and Rehabilitation: High Desert State Prison, DIV/facilities/fac_prison_HDSP.asp (last visited Sept. 6, 2005).

  Govind contends High Desert is incapable or unwilling to satisfy his religious needs with a dietary substitute for beef and pork. (Mot. Inj. 3.) He alleges that he was not provided with immediate medical attention when he arrived at High Desert coughing up blood on March 28, 2005. (Id.) According to Plaintiff, he did not receive medical attention until April 12, 2005, when the doctor gave him tuberculosis medication but refused to renew the medical chronos and medications prescribed at Folsom. (Id.) However, an attachment to Govind's Motion shows that he signed the tuberculosis medication consent form on April 8, 2005. (Id. at 59.)

  Plaintiff claims the dining hall and medical clinic are approximately "three chains" away from his cell in another building, forcing him to suffer through cold winds, rain, fog, and four feet of snow during winter to access food and medical aid. (Id. at 4.) Govind believes he was transferred to High Desert so his health would deteriorate and he would die prematurely. (Id.) II. LEGAL STANDARD

  The function of a preliminary injunction is to preserve "the status quo and prevent[] . . . irreparable loss of rights before judgment." Textile Unlimited v. ABMH & Co., 240 F.3d 781, 786 (9th Cir. 2001) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). In addition to having subject matter jurisdiction over the claim, a court must also have personal jurisdiction over the parties to be enjoined. Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983)). "[A]n injunction must be narrowly tailored `to affect only those persons over which it has power. . . .'" Id. Thus, the Court may not enjoin defendants not served or before it.

  Once jurisdiction is established, a plaintiff seeking an injunction must "demonstrate `(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff[] if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff[], and (4) advancement of the public interest (in certain cases).'" Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004) (quoting Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)). Injunctive relief may also be granted if plaintiff is able to demonstrate "that serious questions are raised and the balance of hardships tips sharply in [his] favor.'" Id. (emphasis in original). These two alternatives are not separate tests, but they are a continuum establishing "`the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success' must be established by the party." Id. (citing Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).

  "Serious questions" are questions that cannot be resolved at the injunction hearing and involve a "fair chance of success on the merits[,]" but not a certainty or probability of success on the merits. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (citations and quotation marks omitted). "Serious questions are substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation." Id. (citations and quotation marks omitted).

  A. Govind Is Not Entitled to an Injunction Against These Defendants.

  In his First Amended Complaint, Plaintiff has raised serious questions regarding the adequacy of housing and medical care made available to him by the CDC, as well as serious questions about the behavior of Defendant guards. However, the Court cannot grant the requested injunctive relief against Defendant Adams or Defendant Sims.

  As a preliminary matter, this Court lacks personal jurisdiction over Defendant Adams because he has not been served [doc. no. 7]. Fed.R.Civ.P. 4(k). Absent jurisdiction, there is no basis for exercising authority over him. See Price, 390 F.3d at 1117. Even if the Court had personal jurisdiction over Adams, Govind has not established a likelihood of success on his claims against the Defendant. Furthermore, Plaintiff cannot establish the probability of irreparable harm through any "immediate threatened injury," Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988), because Adams is retired and no longer has any authority over Plaintiff [doc. no. 7]. Govind is unable to show that "the balance of hardships tips sharply in [his] favor." Rodde, 357 F.3d at 994 (citations and quotation marks omitted).

  Because Plaintiff is no longer at Donovan, he likewise fails to demonstrate a threat of irreparable injury by Defendant Sims, a correctional officer at Donovan. Plaintiff "must demonstrate immediate threatened injury" to establish that he is entitled to preliminary injunctive relief. Caribbean Marine Serv. Co., 844 F.2d at 674. Defendant Sims is not a correctional officer at High Desert, where Plaintiff is currently housed. Past injuries alone are inadequate to establish a likelihood that Plaintiff will be wronged again in a similar manner by Defendants. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 105 (1983); La Duke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985). Although Plaintiff may have a claim for damages against Defendant Sims, he has not shown a basis for injunctive relief against him. Accordingly, Plaintiff's Motion for an Injunction to prevent retaliatory and discriminatory actions by Defendants Adams and Sims should be denied.

  B. Plaintiff Has Not Shown That He Is Entitled to a Transfer.

  Govind's Motion for Immediate Transfer to Medical Facility should also be denied because Defendant Sims, the only named Defendant over whom this Court has personal jurisdiction, lacks the authority to transfer Plaintiff. California Penal Code section 5080 gives authority for the transfer of prisoners to the Director of Corrections, presently Jeanne S. Woodford. Cal. Penal Code § 5080 (West 2000); California Department of Corrections: Director, Jeanne S. Woodford, In addition, the Board of Prison Terms may request the Director of Corrections to authorize a transfer, but the California Penal Code does not authorize a correctional officer to transfer a prisoner. See Cal. Penal Code § 5080.

  Furthermore, Govind has not shown that High Desert's medical facilities are inadequate to care for him. (See Roche Decl. 1-3; Objection Ex. D at 18-19); California Department of Corrections and Rehabilitation: High Desert State Prison, gov/InstitutionsDiv/INSTDIV/facilities/fac_prison_HDSP.asp.

  Defendant Sims correctly asserts that Plaintiff has no protected liberty interest in the place of his confinement. (Opp'n at 5-6); Wilkinson v. Austin, ___ U.S. ___, ___, 125 S. Ct. 2384, 2393 (2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). "[A] liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations. . . ." Id. However, California has no policies or regulations that create any entitlement to be transferred to or to remain at a particular correctional facility. See Cal. Code Regs. tit. 15, § 3379 (1997).

  Govind contends that California Penal Code section 5068 creates a protected liberty interest in being housed near his family. (Objection 15a.) California Penal Code section 5068 provides that, "when reasonable, the director [of the CDC] shall assign a prisoner to the institution of the appropriate security level and gender population nearest the prisoner's home, unless other classification factors make such a placement unreasonable." Cal. Penal Code § 5068 (West 2000). "`[R]easonable includes consideration of the safety of the prisoner and the institution, the length of term, and the availability of institutional programs and housing." Id. Plaintiff's wife and children reside in Los Angeles County, California. (Mot. Inj. 5.) Govind requests transfer to San Luis Obispo, Vacaville, or back to Donovan in San Diego. (Id.; Objection 1.) However, as the warden of High Desert stated in his letter response to Govind's medical transfer request, "population management needs may restrict [the CDC's] ability to accommodate [an inmate's transfer] request." (See Objection Ex. D at 18.)

  This Court, pursuant to Rule 201 (b) (2) of the Federal Rules of Evidence, takes judicial notice of the population statistics posted on the CDC's website. Of the three medical facilities — San Luis Obispo, Vacaville, and High Desert (Donovan is not a medical facility) — High Desert is the least overcrowded. California Department of Corrections and Rehabilitation: California Men's Colony, facilities/fac_prison_CMC.asp (showing San Luis Obispo level III at 1,333 prisoners over capacity); California Department of Corrections and Rehabilitation: California Medical Facility, prison_CMF.asp (showing Vacaville level III at 744 prisoners over capacity); California Department of Corrections and Rehabilitation: High Desert State Prison, prison_HDSP.asp (showing High Desert level III at 418 prisoners over capacity). This further diminishes the likelihood that Govind is likely to prevail on the merits.

  Although prison officials may not transfer an inmate to another institution in retaliation for the inmate's exercise of his constitutional rights, Govind has not presented sufficient evidence to show that his transfer to High Desert was a retaliatory move rather than in accordance with "legitimate goals of the correctional institution." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (citations and quotation marks omitted).

  1. Govind Has Not Exhausted His Administrative Remedies.

  In his First Amended Complaint, Govind seeks both monetary damages and a permanent injunction. (First Am. Compl. 7-8.) Defendant Sims argues that Plaintiff is required to exhaust all administrative remedies before he may pursue injunctive relief. (Opp'n 6.) Although the exhaustion of administrative remedies is not required for § 1983 actions seeking only money damages, it is required when the Plaintiff also seeks injunctive relief. Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999).

  Here, Plaintiff is in the process of exhausting administrative remedies, but he has not exhausted all levels of administrative review of his request for a transfer from High Desert. On June 9, 2005, Govind filed a request for a medical transfer using CDC form 1824, Reasonable Modification of Accommodation Request. (Opp'n 8; Wagner Decl. 2; Reply Ex. D at 6.) The request was denied at the first level of review on June 29, 2005, and an appeal was pending at the time Defendant Sims filed his Opposition to Plaintiff's Motion for Injunction. (Opp'n 8.) A decision from the second level of review was due on July 26, 2005. (Wagner Decl. 2.) However, neither Govind's Objection, filed on September 9, 2005, nor the exhibits attached to it mention the result of the second level review. If Plaintiff was unsuccessful at the second level of formal review, he must still appeal to the Director of the CDC. Cal. Code Regs. tit. 15, § 3084.5(d) (1997). Until Plaintiff has fully exhausted prison administrative remedies, he cannot pursue injunctive relief.


  For the reasons set forth above, Govind's Motion for an Injunction and Order for Immediate Transfer should be DENIED.

  This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before November 18, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before December 2, 2005. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


© 1992-2005 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.