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Thomas Hightower v. James Tilton

January 5, 2011


The opinion of the court was delivered by: A Marsha J. Pechman United States District Judge


The above-entitled Court, having received and reviewed 1. Plaintiff's Motions for Court Order Directing Prison Law Library to Place Plaintiff on the Priority User List (Dkt. Nos. 11 and 19), Defendants' Response (Dkt. No. 54) and Plaintiff's Reply (Dkt. No. 57);

2. Plaintiff's Motion to Compel Defendants to Cooperate in Service of Complaint and Summons/Motion for TRO-Preliminary Injunction and Protective Order (Dkt. No. 20), Defendants' Response (Dkt. No. 56), and Plaintiff's Reply (Dkt. No. 58);

3. Plaintiff's Motion for Entry of Default Against Defendants for Failure to Timely Oppose Plaintiff's Two Motions for Injunctive Relief (Dkt. No. 44) and all attached declarations and exhibits, makes the following ruling:

IT IS ORDERED that the motions are DENIED.

As will be discussed in detail below, Plaintiff is not entitled to the various forms of injunctive relief he seeks. In issuing this denial of Plaintiff's request for cooperation in the service of his summonses, however, the Court assumes (based on Defendants' responses) that the California Department of Corrections and Rehabilitation (CDCR) no longer employs the two Defendants (Carillo and Fierson) who have not yet been served. Plaintiff is directed to resubmit his request to the Public Records Act Information Desk/Officer; if either of the two unserved defendants is currently employed by CDCR, the Court trusts that information regarding their job address is available to Defendants and will be provided to Plaintiff. If they are no longer employed by CDCR, Defendants are not responsible for locating these two individuals for Plaintiff.


This is a lawsuit (brought under § 1983 and various state statutes) by a California inmate seeking declaratory and injunctive relief from what he alleges as retaliation for his litigation against the prison system; included in this complaint is an attack on the constitutionality of the administrative classification which he alleges has been illegally created and manipulated to interfere with his right to access the courts.

What Plaintiff primarily seeks through these motions is protection against further retaliation while he prosecutes this federal case and two other pending state lawsuits. The actions he alleges as retaliatory are:  Cell searches which target his legal materials  Transfers to maximum security institutions unwarranted by his classification level (during which his legal materials are inaccessible and sometimes destroyed)  Assignments (or, currently, threats of assignments) of cellmates who will disrupt his legal work.  Manipulation (i.e., withholding) of needed medical attention (Plaintiff states that he is disabled and suffers from chronic pain) Additionally, Plaintiff wants to be permanently assigned (for the duration of this case) Priority Library User (PLU) status and also to be exempted from class/work assignments which occur at the same time as library hours (during the weekdays).

Plaintiff requests unspecified "protection" for his cellmate (Mr. Tarpley) and other (unidentified) inmate witnesses. He also has been unsuccessful in obtaining the addresses of the two remaining unserved defendants (Carillo and Fierson) and wants CDCR ordered to provide that information.


Although Plaintiff has filed a multitude of motions, all of his requests (with the exception of the discovery request related to the two unserved Defendants) seek some form of injunctive relief. The current standard for the granting of injunctive relief is found in Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 374 (2008):

A plaintiff seeking preliminary injunction must establish 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 in the public interest. Furthermore, Plaintiff is not seeking to preserve the status quo by his request (prohibitory relief), he wants the prison ordered to do things differently than he alleges they are being done currently; i.e., Plaintiff seeks mandatory injunctive relief. Such relief is "subject to heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party." Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993).

One of the overarching problems with Plaintiff's request is that he has made no effort to establish his likelihood of prevailing on the merits of his case. Some of the activities that he seeks to address by these motions are the same as those alleged in his complaint (e.g., allegedly illegal transfers and retaliatory cell searches), but they are not factually the same incidents as recounted in his complaint (merely the same alleged policies) and it appears that Plaintiff may not understand that he is not entitled to injunctive relief of any kind absent a showing that he has a probability of success (a high probability, given that he wants ...

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