United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR INJUNCTIVE
RELIEF [ECF No. 106]
Hussein Ali Kietty is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. Pursuant to 28 U.S.C. § 636(c), the parties have
consented to the jurisdiction of the United States Magistrate
Judge. Local Rule 302.
before the Court is Plaintiff's motion for an emergency
permanent injunction, filed April 5, 2017. Defendants filed a
response on April 21, 2017.
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.
“A preliminary injunction … is not a preliminary
adjudication on the merits but rather a device for preserving
the status quo and preventing the irreparable loss of right
before judgment.” Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). 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 Res. Def. Council, Inc., 555 U.S. 7 (2008). 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).
April 5, 2017 motion, Plaintiff seeks a permanent injunction
based on alleged retaliation by Defendants. Plaintiff
contends that a search of his cell was conducted on behalf of
Defendant Deathriage and others to retaliate for this action.
(Mot. at 2, ECF No. 106.) More specifically, Plaintiff
alleges that on March 14, 2017, his cell was searched by the
Institutional Security Unit who confiscated his mail and
photographed legal documents pertaining to this case.
Plaintiff alleges his cell was searched again on March 15,
2017, by non-Defendant, officer Shallenverh who stated she
was advised to conduct the search by her supervisor.
Plaintiff attaches three inmate declarations to support his
contention that his cell was searched by prison officials in
an effort to confiscate and/or photograph his legal materials
pertaining to the instant action.
by way of counsel, have responded to Plaintiff's motion
and submit the following:
On April 11, 2017, I spoke with Correctional Officer
Marmaduke, from the SATF Prison Investigative Services Unit
(ISU), regarding the search of Plaintiff's cell on March
14, 2017. The Officer informed me that ISU was instructed to
search Plaintiff's cell by the Office of Occupational
Safety, which is a division of the California Department of
Corrections and Rehabilitation (CDCR). Specifically, ISU was
asked to photograph material that relates to an outside
investigation into a radicalized prison group. In compliance
with orders, the Officer photographed books, Plaintiff's
tattoos, and other miscellaneous records. Plaintiff was then
informed that the search was due to an outside investigation
and permitted to return to his cell. The Officer confirmed
that no legal material was photographed, no items were
confiscated, he had no knowledge of any lawsuit Plaintiff was
involved in, and that no mention of a lawsuit was made by the
Office of Correctional Safety when the cell search was
requested. Officer Marmaduke is unaware of any search of
Plaintiff's cell that occurred after March 14, 2017.
I also spoke to the Special Agent from the Office of
Correctional Safety, Criminal Intelligence and Analysis Unit,
who ordered the search of Plaintiff's cell. The Agent
confirmed that the Office of Correctional Safety is
conducting an investigation into the formation of a
radicalized prison group, and items from Mr. Kietty's
cell were photographed in furtherance of that investigation.
The Agent also confirmed that, of the items photographed,
none were legal material, that he was not aware of any
lawsuit that Mr. Kietty was involved in, that he does not
even known who Officer Deathriage is, and that Mr. Kietty is
not the focus of the investigation. Other than the search he
ordered on March 14, 2017, the Agent is unaware of any other
search of Plaintiff's cell.
On April 14, 2017, I spoke to inmates Bradford, Stanford, and
Williams, who signed declarations in support of
Plaintiff's motion. All three of the inmates claimed to
have seen ISU officers arrive and photograph items from the
Plaintiff's cell on March 14, 2017. Though, all three of
the inmates confirmed that they were not able to see whether
the items that were photographed were legal material because
they were too far away to read any writing on the envelopes
or see what type of records were present. Therefore, all
three of their declarations are inaccurate in that regard.
One inmate confirmed that Plaintiff and his cellmate were
placed in the shower area while the cell was being searched,
and that from the shower area, Plaintiff also would not have
been able to see what items were being photographed.
None of the inmates saw any items confiscated, and none of
them heard any officer mention a lawsuit or Office
Deathriage. To the contrary, inmates Stanford and Williams
heard the officers respond to Plaintiff by telling him that
they were just “following orders.” All three
inmates informed me that they only became aware of this
lawsuit and the allegation that the search was retaliatory
from Plaintiff himself.
Inmate Williams claims that he witnessed the second search of
Plaintiff's cell on March 15, 2017, by a female
correctional officer, and stated that this search seemed to
be routine because it was conducted by the regular
correctional officers, not ISU, and that the other
inmates' cells were searched as well. He did not see the
officers confiscate anything from Plaintiff's cell.
Neither inmate Bradford nor inmate Stanford witnessed any
search of Plaintiff's cell on March 15, 2017, they only
heard about it afterwards from Plaintiff. Therefore, their
declarations are inaccurate in that regard as well.
(Mot. at 2-3, ECF No. 109.)
on the investigation and information provided by
Defendants' counsel, the March 14, 2017, search was
conducted for an independent investigation and Plaintiff was
not the focus of such investigation. Further, the inquiry by
Defendants' counsel did not reveal any search on March
15, 2017, by the ISU. Therefore, given the inquiry and
response by Defendants' counsel, there is no evidence
before the Court that ...