1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Sanchez, et al., 13 Defendants.
14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in the Arizona State 16 Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. 17 Before the Court are Plaintiff’s Motion to Clarify (Doc. 64), which the Magistrate Judge 18 construed as a motion seeking injunctive relief, and Plaintiff’s Notice to the Chief District 19 Court Judge (Doc. 71), which the Magistrate Judge construed as a Motion seeking 20 injunctive relief. 21 The Court will deny the Motions. 22 I. Motions for Injunctive Relief 23 In his Motion to Clarify, Plaintiff states that he is not given a proper amount of time to 24 use a typewriter in his cell and that Defendant Harris claims the Arizona Department of 25 Corrections (ADC) cannot find Plaintiff’s typewriter ribbons and correction tape. As relief, 26 Plaintiff requests that he be placed “back at South Unit” since he was moved “without 27 provocation,” that he be given his typewriter, that he be “allowed a minimum to get the 28 documents needed from his legal property held by Defendant Harris,” that Defendant 1 Harris and/or ADC agents be ordered not to destroy Plaintiff’s property, and that 2 Defendants be ordered not to retaliate against Plaintiff. (Doc. 64.) 3 In Response, Defendant Harris asserts that when an inmate is being housed in 4 maximum custody or close custody, he cannot possess a typewriter in his cell due to safety 5 and security concerns, and Plaintiff is currently housed in close custody. (Doc. 81.) 6 Defendant further asserts that Plaintiff had not advised staff he wished to use his typewriter, 7 but after learning that Plaintiff wished to use his typewriter, the typewriter was forwarded 8 to Plaintiff’s Corrections Officer (CO) III so that Plaintiff could have access to his 9 typewriter. (Id.) Defendant asserts that Plaintiff’s typewriter ribbons and correction tape 10 were found on July 18, 2019 and returned to Plaintiff. (Id.) Defendant also asserts that 11 Plaintiff was provided access to all of his legal materials on July 18, 2019 for 4 ½ hours. 12 (Id.) Defendant asserts that he has no authority to transfer Plaintiff back to “South Unit” 13 or to give Plaintiff a typewriter in his cell. (Id.) As a result, Defendant Harris argues that 14 Plaintiff’s claims regarding his typewriter ribbon, correction tape, and access to legal 15 materials should be denied as moot, and the remainder of the motion should be denied 16 because Defendant Harris does not have authority to grant Plaintiff relief and Plaintiff 17 cannot meet the standard for obtaining a preliminary injunction. In reply, Plaintiff argues 18 that close custody inmates are allowed to have a typewriter in their cells. Plaintiff admits 19 that his typewriter ribbons were returned to him. 20 In his Notice, Plaintiff states that on June 10, 2019, he overheard a group of officers 21 stating that inmates that file lawsuits “need [their] asses kicked” and noted that Plaintiff 22 “has a lawsuit against Harris.” (Doc. 71 at 2.) Plaintiff asserts that after he left medical on 23 July 18, 2019, an officer stated “th[ere’s] that piece of shit, did you get all your stuff 24 yesterday?,” apparently referring to an extra blanket that medical had ordered for Plaintiff. 25 (Id. at 2.) Plaintiff asserts that a few minutes later, officers confiscated Plaintiff’s extra 26 blanket. (Id. at 3.) Plaintiff believes that if he had refused “in any way,” he would have 27 been badly assaulted. (Id.) As relief, Plaintiff requests that he be separated from Defendant 28 Harris so that they are both no longer at SMU. (Id.) In response, Defendant asserts that 1 Plaintiff did not have a valid Special Needs Order (SNO) for an extra blanket when his 2 blanket was taken, but Plaintiff may now possess a medical blanket pursuant to the SNO, 3 and he now has three blankets in his cell and, as a result, his request for an additional 4 blanket should be denied as moot. (Doc. 106.) In Reply, Plaintiff denies that his extra 5 blanket has been returned to him. (Doc. 108.) 6 II. Legal Standard 7 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 8 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 9 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 10 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 11 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 12 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 13 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 14 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 15 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 16 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the 17 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 18 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 19 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 20 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious 21 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger 22 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 23 1072. 24 Regardless of which standard applies, the movant “has the burden of proof on each 25 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 26 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 27 mandatory preliminary injunction, which should not be granted “unless the facts and law 28 1 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th 2 Cir. 1986) (citation omitted). 3 The Prison Litigation Reform Act imposes additional requirements on prisoner 4 litigants who seek preliminary injunctive relief against prison officials and requires that 5 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 6 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 7 999 (9th Cir. 2000). 8 A court may issue an injunction against a non-party only where the non-party acts 9 in active concert or participation with an enjoined party. Fed. R. Civ. P. 65(d)(2) (a 10 preliminary injunction only binds those who receive actual notice of it by personal service 11 or are parties, their officers, agents, servants, employees, and attorneys, and persons in 12 active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.
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1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Sanchez, et al., 13 Defendants.
14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in the Arizona State 16 Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. 17 Before the Court are Plaintiff’s Motion to Clarify (Doc. 64), which the Magistrate Judge 18 construed as a motion seeking injunctive relief, and Plaintiff’s Notice to the Chief District 19 Court Judge (Doc. 71), which the Magistrate Judge construed as a Motion seeking 20 injunctive relief. 21 The Court will deny the Motions. 22 I. Motions for Injunctive Relief 23 In his Motion to Clarify, Plaintiff states that he is not given a proper amount of time to 24 use a typewriter in his cell and that Defendant Harris claims the Arizona Department of 25 Corrections (ADC) cannot find Plaintiff’s typewriter ribbons and correction tape. As relief, 26 Plaintiff requests that he be placed “back at South Unit” since he was moved “without 27 provocation,” that he be given his typewriter, that he be “allowed a minimum to get the 28 documents needed from his legal property held by Defendant Harris,” that Defendant 1 Harris and/or ADC agents be ordered not to destroy Plaintiff’s property, and that 2 Defendants be ordered not to retaliate against Plaintiff. (Doc. 64.) 3 In Response, Defendant Harris asserts that when an inmate is being housed in 4 maximum custody or close custody, he cannot possess a typewriter in his cell due to safety 5 and security concerns, and Plaintiff is currently housed in close custody. (Doc. 81.) 6 Defendant further asserts that Plaintiff had not advised staff he wished to use his typewriter, 7 but after learning that Plaintiff wished to use his typewriter, the typewriter was forwarded 8 to Plaintiff’s Corrections Officer (CO) III so that Plaintiff could have access to his 9 typewriter. (Id.) Defendant asserts that Plaintiff’s typewriter ribbons and correction tape 10 were found on July 18, 2019 and returned to Plaintiff. (Id.) Defendant also asserts that 11 Plaintiff was provided access to all of his legal materials on July 18, 2019 for 4 ½ hours. 12 (Id.) Defendant asserts that he has no authority to transfer Plaintiff back to “South Unit” 13 or to give Plaintiff a typewriter in his cell. (Id.) As a result, Defendant Harris argues that 14 Plaintiff’s claims regarding his typewriter ribbon, correction tape, and access to legal 15 materials should be denied as moot, and the remainder of the motion should be denied 16 because Defendant Harris does not have authority to grant Plaintiff relief and Plaintiff 17 cannot meet the standard for obtaining a preliminary injunction. In reply, Plaintiff argues 18 that close custody inmates are allowed to have a typewriter in their cells. Plaintiff admits 19 that his typewriter ribbons were returned to him. 20 In his Notice, Plaintiff states that on June 10, 2019, he overheard a group of officers 21 stating that inmates that file lawsuits “need [their] asses kicked” and noted that Plaintiff 22 “has a lawsuit against Harris.” (Doc. 71 at 2.) Plaintiff asserts that after he left medical on 23 July 18, 2019, an officer stated “th[ere’s] that piece of shit, did you get all your stuff 24 yesterday?,” apparently referring to an extra blanket that medical had ordered for Plaintiff. 25 (Id. at 2.) Plaintiff asserts that a few minutes later, officers confiscated Plaintiff’s extra 26 blanket. (Id. at 3.) Plaintiff believes that if he had refused “in any way,” he would have 27 been badly assaulted. (Id.) As relief, Plaintiff requests that he be separated from Defendant 28 Harris so that they are both no longer at SMU. (Id.) In response, Defendant asserts that 1 Plaintiff did not have a valid Special Needs Order (SNO) for an extra blanket when his 2 blanket was taken, but Plaintiff may now possess a medical blanket pursuant to the SNO, 3 and he now has three blankets in his cell and, as a result, his request for an additional 4 blanket should be denied as moot. (Doc. 106.) In Reply, Plaintiff denies that his extra 5 blanket has been returned to him. (Doc. 108.) 6 II. Legal Standard 7 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 8 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 9 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 10 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 11 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 12 never awarded as of right”). A plaintiff seeking a preliminary injunction must show that 13 (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without 14 an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 15 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 16 ‘serious questions going to the merits’—a lesser showing than likelihood of success on the 17 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 18 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 19 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 20 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious 21 questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger 22 showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 23 1072. 24 Regardless of which standard applies, the movant “has the burden of proof on each 25 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 26 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 27 mandatory preliminary injunction, which should not be granted “unless the facts and law 28 1 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th 2 Cir. 1986) (citation omitted). 3 The Prison Litigation Reform Act imposes additional requirements on prisoner 4 litigants who seek preliminary injunctive relief against prison officials and requires that 5 any injunctive relief be narrowly drawn and the least intrusive means necessary to correct 6 the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 7 999 (9th Cir. 2000). 8 A court may issue an injunction against a non-party only where the non-party acts 9 in active concert or participation with an enjoined party. Fed. R. Civ. P. 65(d)(2) (a 10 preliminary injunction only binds those who receive actual notice of it by personal service 11 or are parties, their officers, agents, servants, employees, and attorneys, and persons in 12 active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1984) (“A federal court may 13 issue an injunction if it has personal jurisdiction over the parties and subject matter 14 jurisdiction over the claim; it may not attempt to determine the rights of persons not before 15 the court.”); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 16 (1969). 17 III. Discussion 18 There is no showing that Defendant Harris has any authority over where Plaintiff is 19 housed and, thus, the Court lacks jurisdiction related to Plaintiff’s housing location. 20 Although Plaintiff argues that he is being denied access to a typewriter, Defendant asserts 21 that Plaintiff must request access to his typewriter from his CO III, and Plaintiff presents 22 no evidence that his CO III is denying him access to a typewriter when Plaintiff requests 23 access; additionally, there is no showing that Defendant Harris has authority over whether 24 Plaintiff is granted access to his typewriter. Further, based on Defendant’s assertion that 25 Plaintiff was allowed to view his legal documents on July 18, 2019 for 4 ½ hours, it appears 26 that Plaintiff’s request to view his legal documents is moot. Plaintiff’s remaining 27 requests—that ADC agents be ordered not to destroy Plaintiff’s property and that 28 Defendants be ordered not to retaliate against Plaintiff—are duplicative of federal law and need not be entered into an order. Accordingly, Plaintiff's Motion to Clarify will be denied. 3 With regard to his request for a medical blanket, Plaintiff has not shown that 4| Defendant Harris was involved in denying Plaintiff a medical blanket or that Plaintiff was 5 | denied a medical blanket as retaliation for filing this lawsuit. To the extent Plaintiff argues 6| other officers are denying him medical care, Plaintiff may have a separate claim for relief related to such a claim, but such a claim is not at issue in this lawsuit. Moreover, the relief 8 | Plaintiff requests as a result of being denied a medical blanket—that he be separated from 9 | Defendant Harris so that they are both no longer at SMU—does not appear to be related to 10 | his claim for a medical blanket and is overly broad. Accordingly, the injunctive relief 11 | sought in Plaintiffs Notice will be denied. 12| ITIS ORDERED: 13 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion to Clarify (Doc. 64) and Plaintiffs Notice to the Chief District Court Judge (Doc. 71). 15 (2) Plaintiff’s Motion to Clarify (Doc. 64) is denied. 16 (3) Plaintiff’'s Notice to the Chief District Court Judge (Doc. 71) is denied. 17 Dated this 16th day of December, 2019. 18
Michael T. Liburdi 21 United States District Judge 22 23 24 25 26 27 28