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Parmer v. Alvarez

December 1, 2009

DAVID EARL PARMER, CDCR #G-35622, PLAINTIFF,
v.
ISAIAH ALVAREZ; PEDRO CUEVAS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER: 1) DENYING PLAINTIFF'S MOTION FOR EMERGENCY TRANSFER [Doc. No. 24] AND 2) PROVIDING PLAINTIFF NOTICE OF DEFENDANTS' MOTION TO DISMISS PURSUANT TO WYATT v. TERHUNE AND SETTING REVISED BRIEFING SCHEDULE

On September 29, 2009, Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [Doc. No. 18]. Defendants move to dismiss, in part, on grounds that Plaintiff failed to exhaust administrative remedies prior to suit pursuant to 42 U.S.C. § 1997e(a). Plaintiff has yet to file any opposition; however on November 19, 2009, Plaintiff submitted an ex parte "Motion for Emergency Transfer" [Doc. No. 24], attached to which is a document entitled "Supplemental Report on Emergency Transfer" [Doc. No. 24-1].

I.

Plaintiff's Motion for Emergency Transfer In his Motion, Plaintiff requests a transfer from California State Prison- Sacramento ("CSP-SAC") where he has been incarcerated since April 2009. Plaintiff claims he is a "Level Three" prisoner who requires a wheelchair, but is in a "Level Four non-ADA approved prison" which is not a "physically or mentally safe place for him." See Pl.'s Suppl. at 4. Plaintiff claims to have made "safety inquiries" to the Warden at CSP-SAC, only to be "called out" and harassed as a result by two CSP-SAC Correctional Counselors. Id.

When Plaintiff initiated this action, he was incarcerated at Richard J. Donovan Correctional Facility ("RJD"). See Pl.'s Compl. [Doc. No. 1]. In his Amended Complaint, which is the operative pleading, Plaintiff claims two RJD officials, Alvarez and Cuevas, used excessive force against him while he was incarcerated at RJD. (Amend. Compl. at 2-3.) Alvarez and Cuevas are the only named Defendants and the only parties who have been served.

Because Plaintiff is proceeding without counsel, the Court liberally construes his request for an emergency transfer as a Motion for injunctive relief pursuant to FED.R.CIV.P. 65. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints.").

A. Standard of Review

The Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA), limits the court's power to grant preliminary injunctive relief to inmates. Gilmore v. People of the State of California, 220 F.3d 987, 998 (9th Cir. 2000).

The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

18 U.S.C. § 3626(a)(1)(A) (emphasis added). "Section 3626(a)... operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the bargaining power of prison administrators-- no longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum." Id. at 999. Even before the PLRA, however, courts reserved injunctive relief only to clear and plain cases. Rizzo v. Goode, 423 U.S. 362, 378 (1976).

The purpose of preliminary injunctive relief is to preserve the status quo or to prevent irreparable injury pending the resolution of the underlying claim. Sierra On-line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). When seeking injunctive relief, the moving party must show either "(1) a likelihood of success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the movant's] favor." Nike, Inc. v. McCarthy, 379 F.3d 576, 580 (9th Cir. 2004) ( internal quotations omitted). "These two alternatives represent extremes of a single continuum, rather than two separate tests. Thus, the greater the relative hardship to [the movant], the less probability of success must be shown." Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999) (internal quotations omitted). Under either test, the movant bears the burden of persuasion. Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 869 (9th Cir. 2003).

B. Application to Plaintiff's Case

Here, Plaintiff seeks injunctive relief against individuals who are not named parties to this lawsuit-- the Warden and two correctional counselors at CSP-SAC. However, the Court has no personal jurisdiction over these individuals. See, e.g., Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982) (defendant must be served in accordance with FED.R.CIV.P. 4 or court has no personal jurisdiction over that defendant). "A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court." Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added).

Neither Defendant Alvarez nor Defendant Cuevas--two correctional officers at RJD in San Diego, are alleged to have the ability to effect Plaintiff's transfer or direct the actions of any staff at CSP-SAC. More importantly, this Court does not have jurisdiction ...


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