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Giraldes v. Oania

United States District Court, E.D. California

June 23, 2016

LARRY GIRALDES, Plaintiff,
v.
OANIA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C. § 1983. He proceeds on his third amended complaint (ECF No. 13), which asserts First Amendment retaliation claims against defendants Oania, Casas, Tuers, Hampton, Macomber, Lynch, and Jibson. Plaintiff moves for a preliminary injunction based on his perceived breach of a settlement agreement in Giraldes v. Hicombothem, 1:09-cv-0154-SKO, a case that is venued in Fresno and concerns plaintiff's medical condition. He also requests a stay of all proceedings. For the reasons stated below, plaintiff's motions must be denied.

         I. Motion for a Preliminary Injunction

         As plaintiff characterizes his motion, he seeks an order compelling defendant Macomber "to cease his failure to comply with the lawful and binding SETTLEMENT AGREEMENT that mandates needed medical provisions, as have been continued for the last six years, to protect plaintiff from irreparable harm clearly documented by Giraldes v. Hicimbothem and Giraldes v. Roche, the two settled cases that prove what will happen to plaintiff by this courts failure to protect him from further retaliation by defendants agents." ECF No. 59 at 3.

         A preliminary injunction will not issue unless necessary to prevent threatened injury that would impair the court's ability to grant effective relief in a pending action. 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). A party seeking preliminary injunctive relief 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., 555 U.S. 7 (2008)). The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions-that is, balancing the elements of the preliminary injunction test, so that a stronger showing of one element may offset a weaker showing of another-survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). "In other words, ‘serious questions going to the merits, ' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. 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).

         Here, the complaint does not seek enforcement of or relate to the terms of the Hicimbothem settlement agreement and none of the defendants in this action were defendants in the Hicimbothem action. This action does not currently include a breach of contract claim, nor is it proceeding on any claim concerning plaintiff's medical needs. See ECF No. 13; see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994) (explaining that an action regarding enforcement of a settlement agreement sounds in contract). Thus, the current motion for a preliminary injunction does not address likelihood of success on the merits of this case or show how serious questions are raised going to the merits of this action.

         Moreover, plaintiff has requested similar relief in the Hicombothem action itself. See Giraldes v. Hicombothem, 1:09-cv-0154-SKO, ECF Nos. 57, 58. Magistrate Judge Oberto ordered the defendants in that action to provide a response to plaintiff's motions, and those defendants are better equipped to respond to plaintiff's concerns regarding the terms of the Hicombothem settlement agreement. See Hicombothem, ECF No. 59.

         In addition, plaintiff's motion fails to demonstrate that issuance of the requested injunctive relief is in the public's interest or that the balance of the equities weighs in plaintiff's favor.

         For these reasons, plaintiff's motion for a preliminary injunction should be denied.

         II. Motion for a Stay

         Plaintiff requests that this action be stayed because he "lost over 12 pounds in less than three weeks, and [is] in too extreem [sic] of pain to continue prosecuting this case." ECF No. 58 at 1. According to plaintiff, he is "physically unable to function beyond the most simple things." Id. at 2. He argues that his "physical incapacity warrents [sic] permanent STAY until he is physically able to continue."[1] Id. at 3.

         Plaintiff's has not shown that he is physically unable to prosecute this action. Rather, his filings in this and the Hicombothem actions demonstrate his ability to timely draft and file coherent documents with the court. See, e.g., ECF No. 64 (plaintiff's May 25, 2016 "objections" to defendants' May 13, 2016 filing); Hicombothem, ECF No. 68-70 (plaintiff's May 25, 2016 filings in response to defendants' May 13, 2016 filing).

         Plaintiff's claimed need for an open-ended stay in this action is also undermined by the declarations submitted in the Hicombothem action, which demonstrate that plaintiff is receiving more calories than is necessary for good health and that he is receiving pain treatment at a safe and effective level.[2] According to A. Nicolai, the registered dietician at California State Prison, Sacramento ("CSP-Sac"), medical staff discontinued some of plaintiff's snacks and nutritional supplements because plaintiff's body mass index put him in the overweight range. ECF No. 62-4, Ex. 3 at 85-88, ¶¶ 1, 5-6. Plaintiff subsequently lost approximately fifteen pounds over the course of two months. Id. ¶ 10. Since then, an additional liquid nutritional supplement was reinstated, and plaintiff began receiving frequent small meals from the kitchen instead of just snacks. Id. ¶ 11, 13. According to the dietician, plaintiff is currently receiving more calories than his nutritional needs require. Id. ¶ 8.

         As for plaintiff's reports of pain, M. Bobbala, the Acting Chief Medical Executive at CSP-Sac, states that plaintiff exhibited no objective withdrawal symptoms when his morphine dosage was tapered in March of 2016, suggesting that plaintiff was never ingesting all of the morphine provided to him. ECF No. 62-3, Bobbala Decl. at 8-16, ¶¶ 10-16. In addition, medical evaluations and observations do not corroborate plaintiff's written complaints of pain. Id. ...


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