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Hollis v. Harrington


July 6, 2009


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge



Plaintiff filed a motion for a temporary restraining order ("TRO") and a preliminary injunction ("Motion for TRO") seeking an order requiring defendants to comply with medical care already prescribed and directing that he be immediately transferred from Ironwood State Prison ("ISP") to a medical facility with a cardiologist and neurologist on staff (specifically, either California Men's Colony ("CMC") or California Medical Facility ("CMF"), examined by suitable specialists, and treated according to their orders. [Motion for TRO 4]. Defendants filed an opposition to the motion.

A Report and Recommendation ("Report") was filed on April 28, 2009 recommending denial of plaintiff's motion for TRO on the grounds that (1) plaintiff had not shown that he would suffer irreparable injury in the absence of preliminary injunctive relief; (2) the relief plaintiff sought in his motion for TRO would significantly alter, rather than preserve, the status quo; and (3) the defendant against whom the TRO was directed lacked authority to provide the requested relief. [Report 3-8].

Plaintiff filed objections to the Report on June 11, 2009 contending that his motion for TRO should be granted because defendants had "conceded" the merits of his motion. Specifically, plaintiff contends that (1) on April 1, 2009, during plaintiff's annual Unit Classification Committee ("UCC") review, the UCC recommended that plaintiff's request for a transfer to CMC or CMF on the grounds of "medical needs/family ties" be granted; (2) on April 2, 2009, N. Lind, M.D., and John Culton, M.D., signed a form CDC 128 C stating that "[d]ue to a potentially life threatening medical condition, please assign [plaintiff] to a medical facility that has immediate access to emergency medical services such as that found at CMC or CMF"; and (3) on April 15, 2009, the Classification Staff Representative ("CSR") endorsed plaintiff's transfer to CMC. [Plaintiff's Objections at 2 & unmarked exhibits]. On May 6, 2009, plaintiff filed a notice stating that his address of record had changed to CMC.

Defendants filed a response to plaintiff's objections and a supporting exhibits contending that plaintiff had not shown that the analysis in the Report was erroneous, and that plaintiff's transfer to CMC mooted his request for injunctive relief.

Plaintiff's objections lack merit. First, the Report concluded that plaintiff's motion for a TRO did not identify any defendant who was authorized to grant the relief he sought. [Report 7-8]. Consistent with that conclusion, plaintiff's exhibits indicate that plaintiff's transfer to CMC was recommended by the Unit Classification Committee, comprised of defendant D. Holbrook and nonparties J. McMillin and W. McCullough, and that the transfer recommendation was endorsed by nonparty M. Wellard, the CSR. Defendant Holbrook was not mentioned in plaintiff's motion for a TRO, and the majority of ISP staff members involved in recommending and granting plaintiff's transfer request are not defendants in this case.

Second, Dr. Nickolas Lind, one of plaintiff's treating physicians at ISP and one of the two ISP doctors who signed the form on April 2, 2009 requesting plaintiff's transfer due to a "[d]ue to a potentially life threatening medical condition," submitted a declaration dated March 27, 2009 opposing plaintiff's motion for TRO. As explained in the Report, the gist of Dr. Lind's declaration testimony was that plaintiff had received medically appropriate treatment for his medical conditions at ISP in the past and could continue to receive appropriate treatment at that institution. [See Report 4-7]. Although plaintiff's exhibit indicates that Dr. Lind subsequently recommended a transfer, that evidence postdates plaintiff's motion for TRO and Dr. Lind's declaration, does not necessarily contradict his prior declaration testimony, and was not part of the record when the Report was issued. Accordingly, Dr. Lind's April 2, 2009 statement is not a "concession" to the granting plaintiff's motion for TRO, and the Report properly relied on Dr. Lind's prior declaration testimony to recommend denial of that motion.

Finally, plaintiff's objections establish that his motion for preliminary injunctive relief is now moot. Plaintiff obtained a significant portion of the relief sought in his motion for TRO-a transfer to CMC, where he could receive specialized medical treatment-after he filed his motion for TRO, through his UCC review. Plaintiff's transfer to CMC also means that no point would be served by enjoining the defendants in this case, who work (or worked) at ISP, to comply with plaintiff's prescribed medical treatment. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001)(noting that "when a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility"). Plaintiff has not "demonstrated a reasonable expectation" (or any expectation) "that he will be will be transferred back to [ISP] and subjected again to" defendants' alleged violations of his rights. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995)(discussing the "capable of repetition, yet evading review" exception to the mootness doctrine). Therefore, plaintiff's objections establish that his motion for TRO is now moot.


For the reasons described above, plaintiff's objections do not alter warrant changing the recommendation that his motion for TRO be denied.*fn1

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