IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 17, 2009
CLARENCE SARGENT, PLAINTIFF,
P. STATTI, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
By Order, filed on August 17, 2009 (docket # 28), plaintiff was directed to show cause why his August 6, 2009 (dkt # 21), ex parte request for immediate injunctive relief alleging an imminent threat of an attack by his cellmate, construed as a motion for a Temporary Restraining Order (TRO), had not been rendered moot upon his having been subsequently moved and placed in a single cell in a different building.*fn1 In the Order at dkt # 28, the court noted that in an Order, filed on August 7, 2009 (dkt # 23), the Attorney General and pertinent defendants had been directed to take any necessary steps to determine whether plaintiff was in imminent danger in his current housing arrangement and set an August 14, 2009, deadline for a response to plaintiff's motion. The Office of the Attorney General filed a timely opposition, on August 12, 2009. Dkt # 26.
In the show cause order, the undersigned also stated: In his request for a TRO, plaintiff averred that he was in fear of an imminent attack by his cellmate, Mike Nichols, because Nichols was "known for beating up sex offenders," and although plaintiff is "not a sex offender," his prison file indicates otherwise. Dkt # 21, pp. 1-2. Inexplicably, Nichols was supposedly provided plaintiff's "papers" by unnamed prison officials, and although Nichols evidently "didn't glance at them," plaintiff apparently felt compelled to attempt to offer an explanation to Nichols, which left plaintiff under a threat of harm. Id. In the response from the Attorney General's Office, it is noted, inter alia, that plaintiff has been moved, as of August 10, 2009, out of the cell, and into a single cell in a different building, and is awaiting a future determination of appropriate housing by the Institutional Classification Committee. See Opp., p. 2 & Declaration of Correctional Sergeant Amero (dkt # 26). Plaintiff must now show cause, by August 28, 2009, why his request for a TRO, alleging that he is "under an immediate threat of being physically harmed" from his cellmate (dkt # 21, p. 2), has not now been rendered moot.
Dkt # 28, p.2.
In his response, timely filed on August 24, 2009 (dkt # 30), plaintiff seeks to explain the deficiencies of the TRO request that the court had originally noted. See Order, filed on August 7, 2009 (dkt # 23). However, what is germane at this point is not each circumstance under which plaintiff filed his request for immediate injunctive relief, but rather whether plaintiff, in his current placement, is subject to the imminent threat of attack by a particular inmate, Mike Nichols, then his cellmate, that he perceived and that was the subject of his TRO motion. Plaintiff concedes that he has been placed in a single cell and on single cell status as a result of the court's attention to his request, but maintains that if the court should deny his request for immediate injunctive relief, the "wolves" will re-circle and the "'system' will have me terminated.'" Reply (dkt # 30), p. 4. Thus, while acknowledging, at least implicitly, that he is no longer subject to a threat of harm from his former cellmate Nichols, the subject of his TRO request, he expresses anxiety over what he apparently believes is an on-going "set up" by prison officials, who will immediately proceed to subject plaintiff to violent attack or worse in a pattern that he thinks replicates the one wherein plaintiff testified against prison guards at Pelican Bay State Prison (PBSP). Id., at 3. This pattern evidently involved Pelican Bay prison guards doing inmates favors in return for which the inmates were provided the paperwork of sex offenders so that the sex offenders could be assaulted. Id. The court has previously noted that plaintiff has alleged his status as a "special interest" inmate who has been in both federal and state custody due to safety concerns arising from plaintiff's assistance in the prosecution of PBSP prison staff. Dkt # 23, p. 1.
The purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary restraining order due to the fact that very few such orders can be appealed prior to the hearing on a preliminary injunction. It is apparent, however, that requests for temporary restraining orders which are not ex parte and without notice are governed by the same general standards that govern the issuance of a preliminary injunction.*fn2 See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the emphasis of the court is directed to irreparable harm and the balance of hardships because the merits of a controversy are often difficult to ascertain and adjudicate on short notice.
Preliminary Injunction Standard
"The proper legal standard for preliminary injunctive relief requires a party to demonstrate '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, 977-978 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008).
In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).
As to determining whether plaintiff is subject to irreparable harm, plaintiff's allegations simply lack coherence or anything like adequate support. Plaintiff asks that unnamed defendants be temporarily be restrained from taking his life or forcing him to take his own life.
In this case, plaintiff does not make a showing that plaintiff will be subjected to the specific circumstances which gave rise to plaintiff's TRO request. Speculative injury does not constitute irreparable harm. Goldies' Bookstore, Inc. v. Superior Court of the State of California, 739 F.2d 466, 472 (9th Cir. 1984). A presently existing actual threat must be shown, although the injury need not be certain to occur. See 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2848 (1973). Plaintiff's request for a TRO to prevent him from being assaulted by an inmate with whom he is no longer housed is denied as moot. Further, plaintiff's earlier motion for a single cell chrono, filed on June 10, 2009 (dkt # 8), which is apparently a letter directed to the defendant warden of High Desert State Prison, recounting plaintiff's alleged dreams/nightmares/night tremors about having any cellmate, will also be denied.
Third Party Motion to Join
An inmate named Juan Banda has submitted a putative motion to join this case as a plaintiff, pursuant to Fed. R. Civ. P. 20(a), or alternatively, to be noticed as a member of a class should this matter proceed as a class action, citing Fed. R. Civ. P. 23(b)(3) & (c)(B). The basis for the defective motion appears to be Inmate Banda's allegation that he has been subject to High Desert State Prison's "unwritten policy to deny, destroy, or otherwise prevent inmate grievances." Motion to join, p. 2. While plaintiff, within the allegations of his first amended complaint, does complain that some of his grievances at HDSP have not been appropriately processed or addressed,*fn3 there has been no appropriate motion, made pursuant to Fed. R. Civ. P. 23, to certify this case as a class action, nor has this inmate demonstrated that he should be permitted to join this action under Rule 20, not having demonstrated that his allegations regarding inadequacies of HDSP's grievance system constitute what is the gravamen of the instant plaintiff's allegations, thus failing to demonstrate that his allegation arises "out of the same transaction, occurrence, or series of transactions or occurrences...." Fed. R. Civ. P. 20(a).
Inmate Banda must proceed in a separate and individual action upon any complaint he may have regarding any constitutional deprivation he believes he has suffered. In doing so, this individual would do well to take into consideration that prisoners do not have a "separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the non-existence of, or the failure of prison officials to properly implement, an administrative appeals process within the prison system does not raise constitutional concerns. Mann v. Adams, 855 F.2d at 640. See also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D.Ill. 1982) ("[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment"). Specifically, a failure to process a grievance does not state a constitutional violation. Buckley, supra. State regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995).*fn4
Request for Injunction re: Access to Courts
Plaintiff complains that after months of seeking access to the administrative segregation law library, on July 28, 2009, he was taken to the satellite facilities for an hour and received a few sheets of paper and envelopes. Dkt # 16, p. 1. Plaintiff's avers that his request for specific case law was refused; when he was finally supplied with a copy of the Federal Rules of Civil Procedure, "a significant amount of pages" was missing; when Correctional Officer Haas gave plaintiff a second copy, it had even more pages missing. Id., at p. 2. Plaintiff also asserts that forms and photocopies are often not available "due to the copier being in a constant state of disrepair" and contends that ad seg law library facilities have been sub-standard for years, submitting his assertions as a declaration under penalty of perjury. Id. at 1-4.
Plaintiff's request centers on the claimed deficiencies of a satellite prison law library, which he is apparently confined to using during his ad seg housing. It is not clear that plaintiff, in his current housing, is limited to that same satellite library, in which case the request may have been rendered moot. In the event that it is not moot, it is nevertheless unclear how the deficiencies plaintiff claims have deprived him of his right of access to the courts. Prisoners do not have: an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.
Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180 (1996), citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977). Rather, plaintiff must set forth an "actual injury" to support a claim for denial of access to the courts under the First Amendment. Lewis v. Casey, supra, at 351-53, 355, 116 S.Ct. 2174. The court held that before a denial of access to the courts claim can go forward, an inmate must "demonstrate that a non-frivolous legal claim had been frustrated or was being impeded." Id. Accordingly, before a claim of denial of access to the courts can proceed, an inmate must demonstrate that he was precluded or thwarted in his efforts to present a legally or factually arguable claim to the courts. Plaintiff has failed to do so in his motion and it will be denied.
Request for Production of Documents
Plaintiff has filed a document entitled "request for production of documents." Plaintiff is informed that court permission is not necessary for discovery requests and that neither discovery requests served on an opposing party nor that party's responses should be filed until such time as a party becomes dissatisfied with a response and seeks relief from the court pursuant to the Federal Rules of Civil Procedure. Discovery requests between the parties shall not be filed with the court unless, and until, they are at issue.
Accordingly, IT IS ORDERED that:
1. Plaintiff's motion for immediate injunctive relief, construed as a motion for a TRO, filed on August 6, 2008 (dkt # 21), is denied as moot;
2. Plaintiff's motion/request for a single cell chrono, filed on June 10, 2009 (dkt # 8), which also appears moot at this time, is denied as well.
3. Plaintiff's inadequately supported motion regarding availability of satellite law library material, filed on July 31, 2009 (dkt # 16), is denied; and
4. Plaintiff's July 17, 2009 (dkt # 13), request for production of documents (Docket No. 13) will be placed in the court file and disregarded. Plaintiff is cautioned that further filing of discovery requests or responses, except as required by rule of court, may result in an order of sanctions, including, but not limited to, a recommendation that this action be dismissed.