Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Velasquez v. Ahlin

United States District Court, E.D. California

May 9, 2018

MICHAEL J. VELASQUEZ, Plaintiff,
v.
PAM AHLIN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER (ECF NOS. 6, 10) OBJECTIONS DUE WITHIN THIRTY DAYS

         Plaintiff Michael J. Velasquez, a civil detainee, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's motion for a temporary restraining order to prevent the Department of State Hospitals (“DSH”) from implementing an amendment to section 4350 of Title 5 of the California Code of Regulations.

         I.

         PROCEDURAL HISTORY

         Plaintiff filed a complaint in this action on January 11, 2018, alleging he was being held in punitive conditions and his constitutional rights were violated due to being deprived of access to the internet and electronic devices. (ECF No. 1.) On January 29, 2018, Plaintiff filed a motion for a temporary restraining order. (ECF No. 6.) On February 16, 2018, Plaintiff's complaint was screened by the magistrate judge and Plaintiff was ordered to either file an amended complaint or notify the court that he was willing to proceed on the claims found to be cognizable within thirty days. (ECF No. 7.)

         On February 16, 2018, the magistrate judge requested that Defendants Pam Ahlin and Brandon Price (“Defendants”) make a special appearance to respond to Plaintiff's motion for a temporary restraining order. (ECF No. 8.) On February 22, 2018, Defendants filed an opposition to the motion for a temporary restraining order. (ECF No. 10.) On March 13, 2018, Plaintiff was granted an extension of time to file an amended complaint. (ECF No. 13.)

         On April 3, 2018, the matter was reassigned to Magistrate Judge Stanley A. Boone due to the retirement of Magistrate Judge Michael J. Seng. (ECF No. 14.) Plaintiff filed a first amended complaint on April 16, 2018. (ECF No. 15.) Plaintiff's first amended complaint was screened and on April 25, 2018, findings and recommendations issued recommending that this action proceed against Defendants Ahlin and Price for a conditions of confinement claim and deprivation of property claim for implementing the amendments to section 4350 and a claim that the regulation is overbroad by prohibiting devices that are not able to connect to the internet. (ECF No. 16.)

         II.

         LEGAL STANDARD

         “A temporary restraining order is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction.” Whitman v. Hawaiian Tug and Barge Corp./Young Bros. Ltd. Salaried Pension Plan, 27 F.Supp.2d 1225, 1228 (D. Haw. 1998). The factors considered for issuing a temporary restraining order are the same as the standards for issuing a preliminary injunction. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008); Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7(9th Cir. 2001).

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). In Winter, the Supreme Court held that “[a] court may grant a preliminary injunction only if the plaintiff establishes four elements: (1) likelihood of success on the merits; (2) likelihood of suffering irreparable harm absent a preliminary injunction; (3) the balance of equities tips in plaintiff's favor; and (4) injunctive relief is in the public interest.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); Leigh v. Salazar, 677 F.3d 892, 896 (2012). “To receive a preliminary injunction, [a plaintiff is] required to show either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” In re Focus Media Inc., 387 F.3d 1077, 1085 (9th Cir. 2004) (quoting Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999)). “These standards ‘are not separate tests but the outer reaches of a single continuum.' ” Stuhlbarg Int'l Sales Co., 240 F.3d at 840 (quoting International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993)). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S. at 22 (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)) (emphasis added).

         III.

         DISCUSSION

         Plaintiff seeks an order allowing him to keep electronic devices that store memory, DVDs, CDs, and games with memory storage devices, DVD players, and MP3 players. (ECF No. 6 at 1-2.[1]) Plaintiff contends that he will suffer irreparable harm and injury if his electronic devices and items are confiscated pursuant to Cal. Code Regs. tit. 9, § 4350. (Id. at 1-2.) Plaintiff argues that to seize his devices the defendants must have probable cause that he has done the acts that create the risk addressed by the regulation. (Id. at 3.) Plaintiff further argues that the defendants have enacted the regulation without proof or evidence. (Id. at 4.)

         Plaintiff has a DVD player, MP3 players, hard drives, thumb drives, Micca Media player, portable radio, and portable DVD. (Id.) Plaintiff contends that section 4350 is overbroad and vague and is punitive in effect. (Id.) Plaintiff argues that Defendants statements that the ownership of such devices compromises the security of the facility is only a smokescreen for the true intent of the amendment which is retribution and deterrence. (Id. at 5.)

         Plaintiff contends that he was denied access to the Court because on January 18, 2018, at approximately 1315 hours Plaintiff was advised that he would not be able to make a mail out appointment for his legal mail nor would he be allowed access to typewriters, the law library, or to call his attorney. (Id. at 6.)

         Defendants request that the Court deny the motion for a temporary restraining order regarding the implementation of the amendments to section 4350. (ECF No. 10 at 7.) Defendants argue that Plaintiff is not able to establish likelihood of success on the merits because he does not have a constitutional right to possess a computer and related internet capable devices. (Id.) Further, Defendants contend Plaintiff's computers and electronic devices were confiscated as allowed by the regulation the last week of January 2018, so his request is moot. (Id.) Defendants argue that Plaintiff will not suffer harm because he has access to a computer lab to conduct his legal, treatment, and other appropriate activities. (Id.) Defendants further argue that Plaintiff can maintain his digital legal material, and will have a means to listen to music and enjoy video games. (Id.) Defendants request that the Court take judicial notice of the Coalinga State Hospital (“CSH”) website, Notice of Emergency Amendments and Findings of Emergency Regulations for Electronic Patient Property, California Code of Regulations, the Office of Administrative Law's Approval of the Emergency Regulations, memorandums from Defendant Price to the patients at CSH, the Fresno County District Attorney's memorandum to staff and patients, the order denying a restraining order in Saint Martin v. Price, No. 1:18-cv-00123-DAD-SKO (E.D. Cal), a letter to Los Angeles Superior Court Judge Bianco, and the Department of State Hospital's (“DSH”) published statement of comment/response/rebuttal to the regulation.[2] (ECF No. 10-1.)

         A. Mootness Due to Implementation of the Amendments

         Initially, Defendants argue that Plaintiff's request for a temporary restraining order is moot because the amendments to section 4350 have been implemented; and Plaintiff's electronic devices and items have been confiscated. Here, Plaintiff is seeking a temporary restraining order or “any appropriate relief the Court finds proper to halt a potential miscarriage of justice until the court decides on the constitutional claims. . . .” (ECF No. 5 at 9.) Defendants argue that the amended regulation was implemented in January 2018, and all personal computers and related electronic devices were confiscated by January 31, 2018 making Plaintiff's request for injunctive relief moot. (ECF No. 10 at 19-20.)

         “[A] case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). A case becomes moot where there is no reasonable expectation that the alleged violation will reoccur and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979). “Thus, in deciding a mootness issue, the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Sea-Land Serv., Inc. (Pac. Div.) v. Int'l Longshoremen's & Warehousemen's Union, Locals 13, 63, & 94, 939 F.2d 866, 870 (9th Cir. 1991).

         Plaintiff sought a temporary restraining order to prevent his electronic devices from being confiscated due to the amendments to section 4350. While Plaintiff's devices have now been confiscated and are being stored, it cannot be said that the alleged violation will not reoccur. Plaintiff is still detained at CSH and, were he to attempt to obtain one of the items prohibited by the amendments to section 4350, he would be precluded from possessing them by the regulation.

         Further, the effects of the amendment to section 4350 have not been eradicated, rather Plaintiff is subjected to the specific conditions that he alleged violated his constitutional rights, the confiscation of his electronic devices. While Defendants argue that the action is moot due to the confiscation of Plaintiff's electronic devices, relief remains available should the Court find that Plaintiff has met his burden of making a clear showing that he is entitled to relief. For example, the Court could enjoin DSH from enforcing the regulation. The Court finds that Plaintiff's request for injunctive relief is not moot due to the implementation of the amendments to section 4350.

         B. Likelihood of Success on Merits

         Plaintiff argues that he is likely to succeed on the merits of his claims because the defendants must have probable cause to seize his property and none of the risks claimed are specific to him. Plaintiff contends that the regulation is arbitrary and capricious and the claimed risks do not justify disallowing use or possession of the items prohibited by the amendment to section 4350. Further, Plaintiff contends that the defendants have not been truthful in enacting section 4350 and do not have proof or evidence to support the amendments to the regulation. Plaintiff states that the regulations allow him to keep and use personal property as space permits and any attempt to limit his electronic property is punitive. Finally, Plaintiff contends that he is being denied access to the court because on January 18, 2018, he was denied a mail out appointment for his legal mail, was told he would not be allowed access to a typewriter or the law library, and could not call an attorney.

         Defendants counter that Plaintiff cannot establish a likelihood of success on the merits of his claims because he does not have a constitutional right under the Fourteenth Amendment to possess a computer and related electronic devices. Further, Defendants argue that they have a legitimate interest in institutional security and an obligation to take reasonable measures to guarantee the safety of patients in the institution. Defendants contend it is crucial that SVPs be prevented from procuring child pornography and other illicit materials.

         In deciding whether a preliminary injunction should issue, the likelihood of success on the merits is the most important factor for the court to consider. Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). To establish a substantial likelihood of success on the merits, the plaintiff must show “a fair chance of success.” In re Focus Media Inc., 387 F.3d at 1086 (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988)). “[O]nce the moving party has carried its burden of showing a likelihood of success on the merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense will succeed.” In re Focus Media Inc., 387 F.3d at 1086 (quoting Perfect 10, Inc. v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.