United States District Court, E.D. California
E. CHILDS, Plaintiff,
STATE OF CALIFORNIA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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.
Plaintiff’s Motion for a Temporary Restraining
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.
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
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).
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. §
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.
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.
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.
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.
The Parties’ Factual Assertions
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:
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.
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