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Kelvin Houston v. Mike Knowles

August 30, 2011

KELVIN HOUSTON, PLAINTIFF,
v.
MIKE KNOWLES, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are defendants' motion to dismiss (Docket No. 53), plaintiff's motion to compel (Docket No. 88), defendant's motion to conduct plaintiff's deposition (Docket No. 87), defendant's motion to stay discovery pending ruling on the motion to dismiss (Docket No. 90), and plaintiff's motions for a protective order (Docket Nos. 85, 86). For the reasons provided below, the undersigned recommends that the complaint be dismissed with leave to amend. In addition, the court denies plaintiff's motions for a protective order. Lastly, the court grants defendants' motion for an order staying discovery pending final determination of defendants' motion to dismiss.

I. Motions for a Protective Order

On May 12 and May 16, 2011, plaintiff filed motions for a protective order, informing the court of certain facts and implying that defendants attempted to orchestrate his death during his dialysis treatment and then gave him medicine to cause him harm. Plaintiff's allegations are difficult to summarize, so the court provides them verbatim:

The defense . . . managed to influence plaintiff to being admitted to Queen of the Valley hospital where not only did the medical procedures got bad [sic] setting up the first loss of blood but that time was also used to induce plaintiff into taking a drug believed to be an dialysis aid [sic] which . . . was actually some kind of mental castration pill that has cause [sic] plaintiff to dream dreams in which he's in some type of African prison being raped and chased for sport by cannibal headhunters.

On 5/10/11 (Tue) after plaintiff had been returned to the prison and started a dialysis treatment after having informed dialysis staff that I had lost a lot of blood a day or two prior with none being restored, suddenly and hour into that treatment I was awakened by a very loud noise as if someone were celebrating or something and as I sat there feeling ice cold doing my best to get out of that rest in peace stupor staff as inmates [sic] were staring at me as if they had witnessed something they couldn't believe I was coming out of. I remember my lips feeling swollen as if someone had punched me while I was apparently unconscious. Despite like 150 plus [sic] I managed to leave by agreeing to see other medical staff of which I had no intention of seeing. . . . I am still up as for the time earlier in the day as I dream sleep [sic] it was like I was vividly in an African prison being raped and chased for sport by cannibalistic headhunters. I could only think it was one of those drug induced things used for like mental castration will at any rate fact or fiction [sic] I'm now in fear of receiving dialysis treatment or eating the dialysis medically needed nutritional support as odd looking portions of my food taste and smell like the two horse pill sizes pills [sic] they originally gave which had to be 300 mg a piece judged in comparison to the one 75 mg Plavix they claimed I was being given which I at that point refused to take any more as also the other night as I was coming out the rest in peace stupor I remembered a prominent news man Ted or Donald something issuing a warning on the drug Plavix, if that was even actually what I was given.

Dckt. No. 86 at 2-3. Plaintiff asks the court to issue a protective order "directing the defense to cease this unethical and illegal retaliation practice[.]" Id. at 3.

The court construes the request as a motion for a preliminary injunction and declines to issue the requested order. Given the lack of showing of any probable success on the merits of his claims, plaintiff fails to make the showing required to obtain a preliminary injunction. To be entitled to preliminary injunctive relief, petitioner must 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, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008)). He has not made that showing.

The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions as it relates to the showing a plaintiff must make regarding his chances of success on the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, ___F.3d ___, 2010 U.S. App. LEXIS 19922, 2010 WL 3665149, *8 (amended September 28, 2010). Under this sliding scale the elements of the preliminary injunction test are balanced. As it relates to the merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. Id. Even with this sliding scale, plaintiff has demonstrated inadequate merit or harm to warrant preliminary injunctive relief.

Plaintiff has presented nothing to corroborate his allegations of "unethical" or "illegal retaliation." As best the court can discern, plaintiff believes that defendants have somehow instructed medical personnel both inside and outside the prison to provide him with a harmful drug, which he describes as a "mental castration" pill, instead of the dialysis medicine required for his dialysis treatment. Plaintiff has provided no evidence or corroboration in support of these extravagant allegations. Absent some evidence supporting plaintiff's claims, plaintiff cannot meet the requirements for preliminary injunctive relief.

II. Motion to Dismiss and Motion to Stay Discovery

On January 25, 2011, defendants Shankland, Mitchell, and Dickinson filed a motion to dismiss the complaint, arguing that plaintiff has not stated claims for violation of the Eighth and 14th Amendments because the facts alleged do not constitute such violations. Dckt. No. 53. Defendants Shankland, Mitchell, and Dickinson further argued that plaintiff's 14th Amendment claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1984). Defendants Knowles, Olson, and Riley joined the motion to dismiss on February 14, March 15, and April 4, 2011, respectively. Dckt. Nos. 62, 72, 78.

Defendants have moved to stay discovery pending resolution of the motion to dismiss. Dckt. No. 90. Plaintiff has filed no opposition to the motion despite being given the opportunity to do so. The court finds that additional discovery is not necessary to the determination of the motion to dismiss and will accordingly grant defendants' request for a stay of discovery. See Little v. Seattle, 863 F.2d 681, 685 (9th Cir. 1988)). Accordingly, the court stays consideration of plaintiff's motion to compel (Docket No. 88) and defendants' motion to conduct plaintiff's deposition (Docket No. 87) until the district judge issues an order adopting or declining to adopt the undersigned's recommendation that the motion to dismiss be granted with leave to amend. Should that recommendation be adopted, the court will defer consideration of the pending motions until plaintiff has filed an adequate amended complaint. Should the district judge decline to adopt the recommendation, the undersigned will consider and address the discovery motions at that time.

A. Plaintiff's Claims

In the "Statement of Claim" section of the form complaint, plaintiff alleges vaguely that defendants interfered with his ability to gather evidence to mount a defense, provided "deficient procedural safeguards," obstructed his access to the courts, and caused him to endure "inhumane and dangerous living conditions." Dckt. No. 28 at 3.*fn1 These actions "started as Fourteenth Amendment ...


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