Givens v. California Department of Corrections and Rehabilitation

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner, proceeding without counsel, presently housed at California State Prison, Solano (“CSP-SOL”). Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On December 9, 2019, plaintiff filed a document styled, “Request for Emergency Temporary Restraining Order or Preliminary Injunction.” (ECF No. 21.) As discussed below, the undersigned recommends that plaintiff's motion be denied.

         I. Plaintiff's Amended Complaint

         Plaintiff alleges violations of his (a) right to adequate medical care for his serious medical needs and right to protection, both under the Eighth Amendment, (b) rights under the Americans with Disabilities Act, and (c) First Amendment right not to be retaliated against, and includes various supplemental state law claims, including medical malpractice. Plaintiff names as defendants the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), the Deputy Director for the California Correctional Health Care Services (“CCHCS”); seven doctors employed at Deuel Vocational Institution (“DVI”), an LVN at DVI, and a doctor at the Modesto Eye Surgery Clinic; three doctors at CSP-Solano, two RNs at CSP-SOL, and a Chief Nursing Executive (“CNE”) at CSP-SOL.

         II. Plaintiff's Motion for Preliminary Relief

         In his motion, ^[1] plaintiff seeks an order restraining defendants from transferring plaintiff to the California Substance Abuse Treatment Facility (“SATF”) and from depriving plaintiff from access to all his personal and legal property. (ECF No. 21 at 1.) Plaintiff claims that absent such a court order, “he will suffer irreparable injury and actual Bounds^[2] injuries in his person, this action, and his pending federal habeas [action], ” Givens v. Neuschmid, No. 2:17-cv-0328 KJM CKD P (E.D. Cal.). (ECF No. 21 at 1.) Plaintiff claims that while previously incarcerated at SATF from 2003 to 2007, he suffered a botched knee surgery requiring the filing of multiple grievances and complaints in order to obtain corrective surgery at Mercy Hospital around July 2005. As a result, correctional officers labeled plaintiff as a “trouble maker” and “jail house lawyer, ” and “defendants” or “agents working on their behalf” threatened to harm or kill plaintiff and his family. (ECF No. 21 at 2-3.) Plaintiff argues that the amended complaint filed in this action describes how his reputation at SATF has continued to follow him through his current incarceration.^[3]

         On November 8, 2019, plaintiff was endorsed for transfer to California Medical Facility (“CMF”), an institution designed to accommodate his medical needs, under his new disability status of DPP-DPM (disability affecting placement). About November 29, 2019, plaintiff's personal and legal property were stored at Receiving & Release. On December 2, 2019, while on the transport, plaintiff learned he was being returned to SATF and so refused transfer, stating his life or safety would be at risk based on documentation in his prison file under his former inmate identification number T-86266. Plaintiff received a rules violation for failing to accept the transfer and for refusing a direct order. As of December 4, 2019, plaintiff did not know where his property is located. On December 3, 2019, plaintiff learned that his endorsement for transfer to CMF was overridden by CDCR Headquarters on November 19, 2019, based on a “redirect chrono dated 11-18-19 per PMU directive, ” a non-committee endorsement by CSR R. Garcia, which cannot be overridden at the institutional level. (ECF No. 21 at 4.) Plaintiff states that unless evidence of threats by staff at SATF are found in plaintiff's prison file, defendants will schedule plaintiff for transfer to SATF. Plaintiff adds that during the processing of his 2004 civil rights action, all pleadings were served on the SATF Warden and put in plaintiff's prison file. (ECF No. 21 at 5.) Plaintiff admits that he is unaware if any of the defendants from the 2004 case still work at SATF, but believes one of the officers who threatened plaintiff was at SATF as of 2015. Plaintiff argues that “he should not be forced to jeopardize his safety nor the safety of his family to receive [alleged] adequate medical care at SATF, and believes that interests would better be served at a different prison.” (ECF No. 21 at 5.)

         Specifically, plaintiff asks the court to:

1. Rescind [defendants'] decision to redirect plaintiff's endorsement to CMF in order to transfer plaintiff to SATF, where, due to his ethnicity, he will be a heightened risk for Valley Fever, and subject to the irreparable injury discussed in his motion;

2. Reinstate plaintiff's transfer to CMF or, in the alternative, transfer him to the California Health Care Facility or Mule Creek or other agreed upon prison other than SATF; and

3. Provide plaintiff with access to his needed medications and other personal and legal property needed to defend his claims in this action, as well as No. 2:17-cv-0328 KJM CKD.

(ECF No. 21 at 6.)

         A. Applicable Law

         A temporary restraining order may issue 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 (1974). In ruling on a motion for temporary restraining order, district courts apply the same factors used to evaluate a request for preliminary injunctive relief: whether plaintiff “is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . . the balance of equities tips in his favor, and . . . an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, ...