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Asberry v. Cate

United States District Court, Ninth Circuit

July 10, 2013

TONY ASBERRY, Plaintiff,
MATTHEW CATE, et al., Defendants.


KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for injunctive relief filed May 24, 2013. For the following reasons, the undersigned recommends that plaintiff's motion be denied.

Legal Standard for Injunctive Relief

The party requesting preliminary injunctive relief must show 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." Winter v. Natural Resources Defense Council , 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky , 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge , 844 F.2d 668, 674 (9th Cir. 1988).

Alternatively, under the so-called sliding scale approach, as long as the plaintiff demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the public interest, a preliminary injunction may issue so long as serious questions going to the merits of the case are raised and the balance of hardships tips sharply in plaintiff's favor. Alliance for Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after Winter).


Plaintiff, who is housed at the R.J. Donovan Correctional Facility ("RJDCF") alleges that he has been placed in administrative segregation and denied access to his legal materials related to the instant action. Plaintiff alleges that his legal materials are missing from his property that was packed and stored when he was placed in administrative segregation. Plaintiff suggests that his legal materials were confiscated in retaliation for his pursuit of the instant action.

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson , 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst , 351 F.3d 1283, 1288 (9th Cir. 2003).

No defendants are located at RJDCF. Therefore, plaintiff seeks injunctive relief against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 112 (1969).

The All Writs Act, 28 U.S.C. § 1651(a), permits the court to issue writs "necessary or appropriate in aid of their jurisdiction and agreeable to the usages and principles of law." See generally S.E.C. v. G.C. George Securities, Inc. , 637 F.2d 685 (9th Cir. 1981); United States v. New York Telephone Co. , 434 U.S. 159 (1977). This section does not grant the court plenary power to act in any way it wishes; rather, the All Writs Act is meant to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Co. v. Hutton , 608 F.2d 1283, 1289 (9th Cir. 1979).

Out of concern that the court may lose jurisdiction of this action if plaintiff did not have access to his legal materials, the court ordered the Warden of RJDCF to inform the court of the status of plaintiff's access to his legal materials related to this action. On June 27, 2013, J. Morales, the Legal/Property Officer in Building 6 at RJDCF, filed a declaration addressing plaintiff's access to his legal materials. In his declaration, J. Morales states as follows:

2. Buildings 6 and 7 are the only two housing units at RJDCF for inmates assigned to administrative segregation (ad-seg). There is one Legal/Property Officer assigned to each building.
3. When an inmate is transferred from a housing unit into ad-seg, all of his property, including legal materials, is inventoried and taken to Receiving and Release (R & R).
4. An inmate in ad-seg can have up to one cubic foot of legal materials of his choice in his cell at any given time. If an ad-seg inmate has more than one cubic foot of legal ...

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