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GOVIND v. ADAMS

October 18, 2005.

DANIEL GOVIND, Plaintiff,
v.
W.R. ADAMS, Lieutenant; C. SIMS, Correctional Officer, Defendants.



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

REPORT AND RECOMMENDATION RE: DENIAL OF PLAINTIFF'S MOTION FOR AN INJUNCTION ORDER PREVENTING FROM DISCRIMINATION/RETALIATION AND COURT ORDER FOR IMMEDIATE TRANSFER TO MEDICAL FACILITY [DOC. NO. 46]
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].

  I. BACKGROUND

  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, http://www.corr.ca. gov/Institutions Div/INSTDIV/facilities/fac_prison_SATF.asp (last visited Sept. 6, 2005); California Department of Corrections and Rehabilitation: California Medical Facility, http://www.corr.ca. 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. ca.gov/InstitutionsDiv/INSTDIV/facilities/fac_prison_CMC.asp (last visited Sept. 13, 2005); California Department of Corrections and Rehabilitation: Information Security Office Glossary — D, http://www.corr.ca.gov/ 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, http://www.corr.ca.gov/InstitutionsDiv/INSTDIV/facilities/fac_ 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, http://www.corr.ca.gov/InstitutionsDiv/INST 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.) ...


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