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Burnett v. Dugan

September 8, 2009


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge



Currently before the Court is Plaintiff's Motion for Emergency Restraining Order and Preliminary Injunctive Relief pursuant to FED.R.CIV.P. 65 [Doc No. 45].

Ester Burnett ("Plaintiff"), is a prisoner proceeding in pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Among the allegations in his Complaint, Plaintiff claims that prison officials at California State Prison, Centinela ("CEN") have violated his Eighth Amendment rights by failing to provide him with adequate medical care and failing to accommodate his disability. The Court sua sponte screened Plaintiff's Complaint and initially dismissed it for failing to state a claim upon which § 1983 relief could be granted. (See Sept. 29, 2008 Order at 6-7.) Plaintiff filed his First Amended Complaint ("FAC") on November 24, 2008 [Doc. No. 11]. The Court once again screened Plaintiff's FAC and found that the allegations in Plaintiff's FAC survived the sua sponte screening process required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See Dec. 10, 2008 Order at 2.) The Court further found that Plaintiff was entitled to U.S. Marshal service on his behalf. (Id.)

On March 19, 2009, Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction [Doc. No. 25]. The Court deemed Plaintiff's motion as a motion for preliminary injunction and issued a briefing schedule. After reviewing all documents submitted by both parties, the Court found that Plaintiff was able to show that he was exposed to irreparable harm and ordered Defendants to comply with medical directions issued by Samuel Ko, M.D. on January 21, 2009. (See May 6, 2009 Order at 8.)

Plaintiff was later transferred to California State Prison, Sacramento. (See Notice of Change of Address, Doc. No. 37). On August 5, 2009, Plaintiff filed another request for "Emergency Order Granting Temporary Restraining Order" to which Defendants filed a response on August 31, 2009.


In his most recent motion, Plaintiff claims that prison officials at California State Prison, Sacramento ("CSP-SAC") have failed to follow his medical chronos and he has been denied adequate law library access. (Pl.'s Mot. for TRO at 1-4.)


In order to demonstrate the need for preliminary injunctive relief a party must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009) (quoting Winter v. NRDC, Inc., __ U.S. __, 129 S.Ct. 365, 374 (2008)).


Under the first test for a preliminary injunction, the moving party must demonstrate "high probability of success on the merits" of the case. See Associated Gen. Contractors of California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991).

Here, Plaintiff claims that he does not have adequate access to the prison law library at CSP-SAC. To the extent that Plaintiff may or may not have an access to courts claim against individuals at CSP-SAC, he would have to bring those claims in a separate action after he properly exhausted his administrative remedies pursuant to 42 U.S.C. § 1997e. He could not bring an access to courts claim in this action as that cause of action has arisen after he filed his Complaint. Even if Plaintiff were able to bring such a claim in this action, he has failed to state an access to courts claim. In order to establish a violation of the right to access to the courts, a prisoner must allege facts sufficient to show that: (1) a non-frivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348. Here, Plaintiff has not shown any "actual injury" and even if he were able to show such an injury, he would have to bring that claim in a separate action.

In addition, Plaintiff claims that prison officials at CSP-SAC have failed to provide him with the amount of physical therapy required by Dr. Calvin which "presents a substantial risk of permanent disability" and "permanent nerve damage." (See Pl.'s Mot. at 3.) In support of their Opposition, Defendants submit the Declaration of Travis H. Calvin, M.D., who is the physician that performed Plaintiff's back surgery and provided the initial housing recommendations. (See Defs.' Opp'n, Declaration of Travis H. Calvin, M.D.) In this Declaration, Dr. Calvin declares that he has been informed of Plaintiff's current housing situation along with the amount of exercise Plaintiff is receiving at CSP-SAC. (Travis Decl. at ΒΆ 5.) Dr. Calvin opines that Plaintiff's housing situation is "reasonable." (Id.) In addition, Dr. Calvin disagrees with Plaintiff's assertions that he is at risk of suffering "permanent nerve damage" or ...

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