Childs v. State

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending is defendants’ motion for summary judgment and plaintiff’s motion for a temporary restraining order. ECF Nos. 78, 93. For the following reasons, it is recommended that the motion for a temporary restraining order be denied and that the motion for summary judgment be denied in part and granted in part.

         I. Plaintiff’s Motion for a Temporary Restraining Order

         Plaintiff has submitted a “motion to get help or have the court’s look into an emergency issue” (ECF No. 93) in which he alleges that he is being subjected to beatings, transfers, and other harassment due to his pursuit of this case. The motion states, in its entirety,

I would like to have an emergency temporary injunction under section 1983 and while this action is still in motion.

I have been attacked by numerous of C/O’s in CDCR. I am been [sic] harassed and beat over (7) times and transferred (3) times out of the prison for no reason then sent back to R.J.D. I have been threated [sic] and I’m under heavy duress where my life is in harm’s way over this case #2:13-CV-00670. The C/O’s here is writing me up and attacking me every time I come out my cell. I have lots of witnesses and I was beat today on 4-28-16 and I have medical reports and other things. I believe if the courts don’t step in at this moment I am going to die.

I have been told to drop this case. I am a mental patient and I don’t know what to do. Could you please send a lawyer of anyone to investigate this. I filed and injunction [sic] twice on this.

Action: I need the courts to step in and help and force the CDCR C/O’s to stop using excessive force on me for having a right to have access to the courts. Also have someone talk to me and grant me a lawyer just to help get let me out of ASU (hole) [sic].

Also have this place give me my legal mail.

HELP!

         ECF No. 93 at 1-2. Appended to the motion is a CDCR form entitled “Medical Report of Injury or Unusual Occurrence” dated April 28, 2016 documenting two abrasions and one swollen area on plaintiff. Id. at 3. The nurse who prepared the form wrote that plaintiff said, “I been attacked multiple times due to ongoing case against CDCR” and “I been attacked by Sgt. [illegible name].” Id.

         A temporary restraining order may be issued upon a showing “that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). “The standards for granting a temporary restraining order and a preliminary injunction are identical.” Haw. County Green Party v. Clinton, 980 F.Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary restraining order).

         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). In order to be entitled to preliminary injunctive relief, a party 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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 the 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).

         Plaintiff’s motion does not meet this standard. It addresses conduct that is not a subject of this action, and therefore fails to demonstrate either a likelihood of success on the merits or a serious question on the merits. Generally, such allegations must be pursued through the prison administrative process and then litigated in a separate action. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011).

         The court does have some authority to intervene regarding conduct unrelated to the complaint under The All Writs Act. That Act gives federal courts the authority to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 1651(a). The United States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances against persons who, “though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice.” United States v. N.Y. Tel. Co., 434 U.S. 159 (1977). To obtain an order under the All Writs Act, the requested order must be “necessary.” This language requires that the relief requested is not available through some alternative means. Clinton v. Goldsmith, 526 U.S. 529 (1999).

         Plaintiff’s statements that he is mentally ill, is being beaten, and has been deprived of his legal papers raised cause for concern. Accordingly, the court directed defense counsel to file a response to these allegations so that the court may evaluate whether an order under the All Writs Act is necessary. ECF No. 95. Counsel filed such a response on June 26, 2016 (ECF No. 96), and has provided the court with evidence that plaintiff is regularly sending and receiving legal mail and has been granted priority law library user status on many occasions so that he can prepare court filings. Id., Exs. 6 & 7. Counsel also provided evidence that plaintiff is being provided mental health care and has been transferred for legitimate reasons. Id., Exs. 1-4. Lastly, counsel provided evidence of an altercation between plaintiff and two correctional officers on April 28, 2016, that could have caused the injuries reported on the form submitted by plaintiff. Id., Ex. 8. The officers documented that plaintiff had become combative during an escort and pulled both escorting officers to the ground. Id. Plaintiff has failed to provide further evidence from which the court can evaluate the allegations leveled in his motion.

         On the record before the court, the court cannot conclude that plaintiff is being subjected to retaliatory beatings and transfers and being deprived of mental health treatment and access to legal materials. In other words, the evidence does not show that the order requested by plaintiff is necessary and thus relief is not warranted under the All Writs Act.

         II. The Parties’ Factual Assertions

         A. The Complaint

         This case proceeds on the verified amended complaint filed November 15, 2013. ECF No. 16. In its order screening that complaint, the court found that plaintiff had stated potentially cognizable claims against defendants Ramirez, Dichoso, Imhoff, Nahavandi, Tapiz, Jones, Brown, and Nelson for violation of the Eighth Amendment. ECF No. 19. Plaintiff alleges the following facts:

         At all times relevant to this action, plaintiff was housed at California Medical Facility, Vacaville (“CMF-Vacaville”) in unit I-3, an administrative segregation unit for mentally ill inmates. ECF No. 16 at 7. On March 11, 2013, plaintiff began a hunger strike along with fellow I-3 inmate Bell. Id. Defendant Ramirez, a correctional officer working in I-3, granted plaintiff’s request that he sign an administrative form documenting the beginning of the hunger strike. Id.

         On March 14, 2013 at around 9:30 a.m., defendant Ramirez and fellow officer defendant Dichoso placed plaintiff in waist restraints, and Dichoso escorted plaintiff to a prison medical clinic. Id. at 7-8. Plaintiff was briefly seen by registered nurse Rojas. Id. at 8. After waiting at least 45 minutes to see a doctor, plaintiff asked to be taken back to his cell. Id. Dichoso returned plaintiff to his cell and asked Ramirez to lock the door. Id. at 9. Ramirez locked the door and asked plaintiff if he had ended his hunger strike. Id. Plaintiff replied, “No.” Id. Ramirez ...