United States District Court, E.D. California
FRANCOIS P. GIVENS, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
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, ...