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Johnson v. Sullivan

December 23, 2008

GARRISON S. JOHNSON, PLAINTIFF,
v.
W.J. SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

Plaintiff Garrison S. Johnson, a state prisoner in this civil rights action filed pursuant to 42 U.S.C. § 1983, was appointed counsel by the Court on August 26, 2008. (Doc. 112). Several matters are pending before the Court.

I.

On September 8, 2008, before Plaintiff became aware that counsel had been appointed for him, he filed a pro se motion for a preliminary injunction. (Doc. 127). In that motion, Plaintiff sought an order directing the California Department of Corrections and Rehabilitation (CDCR) to release him from the prison's Security Housing Unit (SHU) where he was being held. Mr. Johnson contends that Defendant Carrasco, an Associate Warden at California Correctional Facility at Tehachapi (CCI -- Tehachapi) where Plaintiff was incarcerated, ordered that Mr. Johnson be held in the SHU indefinitely, in retaliation for Mr. Johnson having named her as a defendant in this suit. Id. at 6-7. According to Plaintiff, Defendant Carrasco imposed an 18-month SHU term set to expire on May 2, 2008, based upon a Rules Violation Report dated March 17, 2007, Log # 4A-07-03-0161. Id. at 3, 7. On March 26, 2008, prior to expiration of the imposed 18-month SHU term, Plaintiff contends that Defendant Carrasco, who was then Chief Deputy Warden and Chairperson of the Institutional Classification Committee responsible for assessing Mr. Johnson's SHU term, informed Plaintiff that the committee was imposing an "indeterminate SHU term against him." Id. Plaintiff alleges that the decision to retain him in the SHU indefinitely was retaliatory, and issued in violation of California Code of Regulations Title 15 § 3341.5(B)8(3)(A)(B).*fn1

On October 1, 2008, counsel for Plaintiff informed the Court that Plaintiff's motion for a preliminary injunction would not be supplemented by counsel, and should be considered by the Court as filed. (Doc. 136). On October 27, 2008, the Court ordered Defendants to respond to Plaintiff's motion for a preliminary injunction on or before November 24, 2008. (Doc. 139). On November 24, 2008, Defendants filed a motion for an extension of time to file an opposition to Plaintiff's motion. (Doc. 141). The Court granted the extension and ordered Defendants to file an opposition by December 12, 2008. (Doc. 142). Defendants filed an opposition stating that Mr. Johnson is no longer being housed in the SHU. (Doc. 149). Accordingly, Plaintiff's motion is DENIED as moot.

II.

On December 11, 2008, Plaintiff's counsel filed a motion for a preliminary injunction compelling Defendants to allow Plaintiff one weekly telephone call with his attorneys. (Doc. 144). In that motion, Plaintiff's counsel contends that an injunction is warranted because counsel has been unable to reach their client, either by mail or by telephone, since their appointment by the Court on August 26, 2008. Id. Letters sent by Plaintiff's counsel, Ms. Thrower, in October 2008 were returned to her two weeks later with a stamp indicating that "Johnson was not at that address." (Decl of L. Thrower, at ¶ 5 (Doc. 145)). It is unclear whether letters sent to Plaintiff by Ms. Thrower on November 22, 2008 were received by Mr. Johnson, because they have not been acknowledged by Plaintiff. Id. at ¶ 6.

On November 28, 2008, Plaintiff's counsel, Mr. DeNiro, called CCI -- Tehachapi and asked to speak to his client. (Decl of M. DeNiro, at ¶ 5 (Doc. 146)). Mr. DeNiro was told that he could not speak to Plaintiff because Plaintiff was being "held in the SHU, and inmates in the SHU are not allowed to receive calls." Id. On December 10, 2008, Mr. DeNiro spoke to Brian Snider, Litigation Coordinator at CCI -- Tehachapi. Id. at ¶ 6. Mr. Snider told Mr. DeNiro that "the Facility had a procedure for attorneys to request to be able to speak with their clients who are housed in SHU" and that there was little to no likelihood that a request by Mr. DeNiro to speak with his client weekly would be approved. Id.

On December 11, 2008, the same day Plaintiff's counsel filed a motion compelling Defendants to provide them with mail and telephone access to their client, this Court ordered Defendants to notify counsel for Plaintiff, and this Court, on or before December 15, 2009*fn2 , of the exact mailing address where Plaintiff could can be reached by his counsel. (Doc. 148). Defendants were also ordered to file a response to Plaintiff's December 11, 2008 motion for a preliminary injunction on or before December 18, 2008. Id. The Court indicated in that order that "[f]ailure to comply with this order will result in immediate sanctions, the granting of the preliminary injunction, or both." Id.

A.

The next day, December 12, 2008, Defendants filed an opposition to Plaintiff's September 8, 2008 motion for a preliminary injunction seeking an order directing Defendants to release him from the SHU. (Doc. 149). In the opposition, Defendants stated that Plaintiff was released from the SHU on November 12, 2008. Id. at 2. That information flatly contradicts the information given to Plaintiff's counsel when he called CCI -- Tehachapi on November 28, 2008 and asked to speak to his client. (Decl of M. DeNiro, at ¶ 5 (Doc. 146)). Mr. DeNiro has declared that he was refused telephone contact with Plaintiff because, he was told, Plaintiff was being "held in the SHU, and inmates in the SHU are not allowed to receive calls." Id.

Defendants' assertion that Plaintiff was released from the SHU on November 12, 2008 also contradicts the information conveyed to Mr. DeNiro when he called CCI -- Tehachapi on December 10, 2008, and was told by Litigation Coordinator Brian Snider that a request by Mr. DeNiro to speak with his client weekly would not likely be approved because"the Facility had a procedure for attorneys to request to be able to speak with their clients who are housed in SHU." Id.

Not only was Plaintiff no longer in the SHU at CCI -- Tehachapi on December 10, 2008, when his attorney attempted to contact him, it appears that Plaintiff was not even at the CCI -- Tehachapi facility. According to a declaration filed by Brian Snider on December 18, 2008, Plaintiff "has been gone from CCI since December 2, 2008." (Decl. of B. Snider at ¶ 9 (Doc. 150)).

When they filed their December 12, 2008 opposition to Plaintiff's motion, Defendants knew or should have known that Plaintiff's counsel was attempting to ascertain their client's whereabouts so they could contact him, as evidenced by counsels' December 11, 2008 motion for a preliminary injunction, and this Court's order that same day. In their December 12, 2008 opposition, however, rather than informing Plaintiff's counsel, and this Court, that Mr. Johnson had been transferred to another facility on December 2, 2008, Defendants stated only that Plaintiff had been released from the SHU on November 12, 2008. Id. Defendants also failed to inform Plaintiff's counsel, or the Court, on or before December 15, 2008, of Johnson's correct mailing address, as directed by the Court in its December 12, 2008 order.

B.

On December 18, 2008, Defendants filed an opposition to Plaintiff's motion for a preliminary injunction compelling Defendants to allow weekly telephone contact between Plaintiff and his counsel in order to allow for deposition preparation and trial preparation.*fn3 (Doc. 150). Defendants argue that: Plaintiff has not demonstrated a need for weekly telephone calls with his counsel; the relief requested is not narrowly drawn; and, the relief requested would have an adverse impact on public safety and the operation of the prison. Id. at 4-5. Defendants also argue that since Johnson has been approved for a transfer to another institution, "[t]he Court ...


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