The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, incarcerated at High Desert State Prison ("HDSP"), who proceeds, without counsel and in forma pauperis, with a complaint filed pursuant to 42 U.S.C. § 1983, and the Americans with Disabilities Act ("ADA"). This action proceeds on the original complaint (Dkt. No. 1), against defendants McDonald and Gower. Presently pending are: (1) plaintiff's motion for preliminary injunctive relief (Dkt. No. 11); and (2) defendants' motion to dismiss the complaint (Dkt. No. 19). For the reasons that follow, this court grants defendants' motion to dismiss the complaint, grants plaintiff leave to file an amended complaint, and recommends that plaintiff's motion for preliminary injunctive relief be denied.
This action proceeds against defendants M. McDonald (former HDSP Warden), and R. L. Gower (former HDSP Chief Deputy Warden), based on the following allegations. The court recounts plaintiff's brief complaint in full (Dkt. No. 1 at 2-3 (excluding 39 pp. exhibits)):
R.L. Gower, Chief Deputy Warden HDSP -- subordinate directly under policy of Warden M. McDonald within chain of command as individual person effecting Warden M. McDonald's policies encouraging deprivation and violation of plaintiff's federally guaranteed U.S. Const. 8th & 14th Amends. rights, acting under color of state law within CDCR [California Department of Corrections and Rehabilitation].
Mr. M. McDonald (Warden) who knew that plaintiff is an asthmatic and having high altitude syndrome, by way of previous meeting of the minds, and lawsuit 2:10cv-01281 GGH, continues to enforce the policies that encourage and injured plaintiff, by depriving him of effective medical care and treatment, adequate healthy housing, and unreasonable delay to his serious medical and housing needs, exposing plaintiff to toxic sewage pollutants x 2 months approx. causing respiratory distress, pain, SOB [shortness of breath], infection of sinuses, irritating eyes, and lungs from approx. June 20, 2011, to August 9, 2011. See Attached 602. [Relief Requested:] Clean and disinfect cell, relocate plaintiff to a clean healthy environment, order defendant to transfer plaintiff to a beneficial lower altitude climate, as plaintiff suffers continuously and unreasonably from high altitude syndrome, which can be relieved by a transfer. Contaminated cell exposes plaintiff to biological pathogens, causes asthma spasms, headaches, disturbs sleep. Plaintiff will continue to suffer irreputable [sic] harm if court doesn't intervene urgently "imminent danger" and risk injuries.
Attachments to the complaint include copies of plaintiff's previously-filed action in this court, Burton v. McDonald, Case No. 2:10-cv-01281 GGH), and two relevant administrative grievances. Pursuant to the most recent grievance, filed on July 7, 2011 (Log No. HDSP-11-01087), plaintiff sought inspection and repair of the plumbing in his cell to eliminate the alleged raw sewage problem. The grievance was granted pursuant to Second Level Review, on July 14, 2011, with a notation that a plumber had "cleaned out your sink and drain, and has replaced the plug in the plumbing line." Although plaintiff sought further review, the appeal was cancelled at the Director's Level Review because it had been "resolved at a previous level." (Dkt. No. 1 at 4-13.)
Plaintiff's previously-filed administrative grievance, submitted as an attachment to his prior civil action, challenged the quality of plaintiff's medical care, complained of the smoke associated with HDSP's Native American religious ceremonies, and requested a transfer to another institution. (Dkt. No. 1 at 11-24 (Log No. HDSP-31-09-14719).) The grievance was exhausted at the Director's Level, on April 24, 2010; that decision states in pertinent part that plaintiff's grievance was denied because plaintiff refused to take steroid inhalers to optimize the medical treatment for his asthma, that plaintiff's asthma could be adequately treated at HDSP, and that plaintiff "could choose not to be out in the A-Yard near the vicinity of the Native American smoke house religious ceremonies during ceremony times." (Id. at 12.)
II. Plaintiff's Motion for Preliminary Injunction
Presently pending is plaintiff's second motion for preliminary injunctive relief.
On September 19, 2011, the court denied without prejudice plaintiff's first motion for preliminary injunctive relief, as sought both in plaintiff's complaint (Dkt. No. 1), and by separate motion (Dkt. No. 6). While acknowledging plaintiff's allegation that he was in "imminent danger of respiratory arrest" (Dkt. No. 1 at 1), the court denied plaintiff's motion on the following grounds (Dkt. No. 8 at 4):
The claims on which plaintiff's motion is predicated are also contained in his complaint; moreover, plaintiff seeks, in both matters, the same relief against the same parties. As previously noted, if plaintiff's allegations are proven, he has a reasonable opportunity to prevail on the merits of this action. Thus, it appears, at least initially, that preliminary injunctive relief may be required to preserve plaintiff's health pending a final decision on the merits of this action.
However, the court notes that plaintiff previously filed, in 2010, an action that included similar claims, which plaintiff voluntarily dismissed. (See Burton v. McDonald, Case No. 2:10-cv-01281 GGH.) In his 2010 case, plaintiff sought, in pertinent part, injunctive relief requiring defendants to refrain "from exposing plaintiff . . . to smoke, pollutants, dust from vents, as plaintiff is an asthmatic, and cannot acclimate to high desert prison environment. Request court order Warden McDonald to transfer plaintiff to a reasonable accommodated facility posthaste to prevent present and future respiratory injuries." (Id., Dkt. No. 1 at 6.) Plaintiff sought a "protective order" directing his transfer "out of HDSP to another prison." (Id.)
The similarity of plaintiff's claims in the instant action, with the claims he asserted in his 2010 case, which plaintiff voluntarily dismissed, casts doubt on the alleged urgency of plaintiff's motion for preliminary injunctive relief. The court will therefore deny the instant motion without prejudice to plaintiff filing a new motion for preliminary injunctive relief that includes an explanation how plaintiff's current circumstances are different, if at all, than when he withdrew his 2010 case.
In the presently pending motion for preliminary injunctive relief, plaintiff explains that he withdrew his prior action (Burton v. McDonald, Case No. 2:10-cv-01281 GGH), because he thought he was going to be transferred from HDSP. Plaintiff further states that, in addition to the problems challenged in his prior action, plaintiff now faces the additional problem of being exposed to raw sewage and the resulting "mold and disease causing pathogenic organisms, including microbals" (Dkt. No. 11 at 3), and that he has been unsuccessful in his efforts to remedy these problems or obtain a cell transfer. Plaintiff asserts that his health is so adversely impacted that he fears he "may possibly suffer respiratory arrest, stroke or death . . . ." (Id. at 4.)
Upon review of this motion, the court, in an abundance of caution, directed the Attorney General to file and serve a response to plaintiff's motion for preliminary injunctive relief, and accorded plaintiff an opportunity to reply. (Dkt. No. 13.) The Attorney General filed an opposition (Dkt. No. 16); and plaintiff replied (Dkt. No. 17).
A preliminary injunction should not issue unless necessary to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. Fed. R. Civ. P. 65; Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). "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, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). "Under the 'sliding scale' approach to preliminary injunctions observed in this circuit, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. At an irreducible minimum, though, the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation." Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012) (citations, internal quotations and punctuation omitted). 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).
The principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision pursuant to a trial on the merits. See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claims raised in the injunction when the action is brought to trial. In addition, as a general rule, this court is unable to issue an order against individuals who are not parties to the suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).
The Attorney General, on behalf of defendants, asserts that plaintiff has no medical need warranting his immediate transfer from HDSP, and addresses each of plaintiff's four principal concerns.
First, defendants assert that there is no information in plaintiff's medical file or history to indicate that the elevation of HDSP has an adverse effect on plaintiff's respiratory health. Citing the attached declaration of Dr. B. Lee, M.D. (Dkt. No. 16-2), defendants assert that, "Plaintiff's most recent Asthma Control Assessment Tool score was 21, which is above the average score of 20. (Lee Decl. ¶ 4.) With a score of 21, Plaintiff has good control over his breathing. (Lee Decl. ¶ 4.) Plaintiff was recently tested for oxygen saturation and his test results came back at 99%. (Lee Decl. ¶ 5.) An individual is considered to have adequate oxygenation when his/her level exceeds 96%. (Lee Decl. ¶ 5.) An individual with an oxygen saturation level under 86% would need supplemental oxygen. (Lee Decl. ¶ 5.)" (Dkt. No. 16 at 2.) Defendants conclude that "[n]othing in Plaintiff's medical file indicates that the elevation in Susanville is having any adverse effects on his health. (Lee Decl. ¶ 6.)" (Id.)
Second, citing the attached declaration of HDSP Litigation Coordinator R. Dreith, defendants state that plaintiff's cell is not near the institution's sweat lodge. Defendants explain, "[t]here is, in fact, no sweat lodge located near Plaintiff's cell. The facility where Plaintiff is housed has only one sweat lodge. (Dreith Decl. ¶ 8.) The sweat lodge is outside in an open-air area and is located three buildings away from Plaintiff's building. (Dreith Decl. ¶¶ 8, 9, 10.) Further, the sweat lodge is only run on the weekend, at the request of the inmates. (Dreith Decl. ¶ 11.)" (Dkt. No. 16 at 2.) Thus, defendants conclude that there is no evidence to support plaintiff's claim that his cell is "near" a sweat lodge, and that the smoke from the lodge is causing plaintiff serious respiratory harm. (Id.)
Third, defendants assert that plaintiff's housing unit and cell are properly ventilated, noting that "[t]he air ventilation system in Plaintiff's housing unit is being properly maintained, and the air filter in Plaintiff's building [housing unit Facility A, Building 2] has been recently replaced. (Dreith Decl. ¶ 6 [referencing HDSP facility maintenance logs].)" (Dkt. No. 16 at 3.)
Fourth, and finally, defendants contend that plaintiff is not being exposed to raw sewage. Defendants note plaintiff's allegation that the wall near his toilet is leaking raw sewage. However, defendants assert that HDSP maintenance staff conducted an inspection, cleaned out the sink and drain in plaintiff's cell, and "replaced the plug in the plumbing line to ensure that no sewage leaked into Plaintiff cell." (Dkt. No. 16 at 3, citing Dreith Decl. at ¶¶ 4, 5.)
In reply, plaintiff first seeks to strike the declaration of R. Dreith, on the grounds that he is not a party to this action, did not interview plaintiff before preparing his declaration, and his declaration contains allegedly fraudulent statements. However, it is well established that a motion for preliminary injunction may be supported by "[e]vidence that goes beyond the unverified allegations of the pleadings." 9 Wright & Miller, Federal Practice & Procedure § 2949 (2011). A preliminary injunction may be granted on the basis of affidavits. Ross--Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 198 (9th Cir. 1953). Here, the declaration of R. Dreith, HDSP ...