(HC) Rodriguez v. Fisher

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 21-CV-1395 JLS (AHG)

12 Petitioner, ORDER: (1) OVERRULING 13 v. PETITIONER’S OBJECTIONS TO AND ADOPTING REPORT AND 14 RECOMMENDATION; 15 KATHLEEN ALLISON, Secretary, (2) DENYING PETITIONER’S EX PARTE REQUEST FOR ORDER 16 Respondent. DIRECTING SHERIFF TO 17 RECOGNIZE PETITIONER AS PRO SE; AND (3) DENYING 18 PETITIONER’S MOTION FOR 19 TEMPORARY RESTRAINING ORDER AND PRELIMINARY 20 INJUNCTION 21 (ECF Nos. 20, 22, 23, 26) 22

23 Presently before the Court are Petitioner Pedro Rodriguez’s (“Petitioner”) Ex Parte 24 Request for Order Directing Sheriff William Gore to Recognize Petitioner as Pro Se 25 Litigant (“Req.,” ECF No. 20); Magistrate Judge Allison H. Goddard’s Report and 26 Recommendation on the Request (“R&R,” ECF No. 23); Petitioner’s Motion for 27 Temporary Restraining Order and Preliminary Injunction for Bail (“TRO Mot.,” ECF No. 28 22); and Petitioner’s Ex Parte Request for Order Allowing Access to Petitioner’s Work 1 Product (“Objs.,” ECF No. 26), which the Court, in its discretion, construes as late-filed 2 Objections to the R&R. 3 Having carefully considered the record and filings in this case and the law, the Court 4 (1) OVERRULES Petitioner’s Objections, ADOPTS the R&R, and DENIES Petitioner’s 5 Request; and (2) DENIES Petitioner’s TRO Motion, for the reasons provided below. 6 BACKGROUND 7 As relevant to the R&R and Petitioner’s Objections thereto, Magistrate Judge 8 Goddard’s R&R contains a complete and accurate recitation of the facts relevant to 9 Petitioner’s Request. See R&R at 2. Petitioner makes no objections to the background as 10 recited therein. See generally Objs. Accordingly, this Order incorporates by reference the 11 background as set forth in the R&R. 12 As relevant to his TRO Motion, Petitioner has filed a Petition Under 28 U.S.C. 13 § 2254 for Writ of Habeas Corpus by a Person in State Custody. See ECF No. 1 (“Pet.”). 14 Petitioner claims that a March 2017 sentencing brief filed by Assistant District Attorney 15 Matt Greco requests that each of Petitioner’s misdemeanor counts of contempt of court be 16 imposed consecutively, resulting in Petitioner serving a sentence of 15 years and 6 months. 17 TRO Mot. at 2–3. Petitioner contends that this sentence is disproportionate and 18 unconstitutional and therefore illegal. Id. Petitioner further alleges that he was scheduled 19 for parole on September 30, 2021, but instead of being paroled was instead transferred to 20 custody in San Diego “to continue serving his aggregate prison sentence in cases 21 340334/333477.” Id. at 2. Petitioner asserts that his legal work product was “confiscated 22 by the San Diego sheriffs.” Id. 23 Petitioner claims that, as “a defendant convicted of a misdemeanor,” he “is entitled 24 to bail on appeal as a matter of right.” Id. at 1 (citing Cal. Pen. Code § 1272; In re Newbern, 25 55 Cal.2d 508 (1961) (en banc)). However, Petitioner also indicates that he has “properly 26 / / / 27 / / / 28 / / / 1 exhausted” his appeals. See Pet. at 5 ; see also id. at 2–3 (noting Petitioner directly 2 appealed his judgment of conviction in the Court of Appeal, Fourth Appellate District, and 3 the California Supreme Court). 4 REPORT AND RECOMMENDATION 5 I. Legal Standard 6 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 7 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 8 a de novo determination of those portions of the report or specified proposed findings or 9 recommendations to which objection is made,” and “may accept, reject, or modify, in 10 whole or in part, the findings or recommendations made by the magistrate judge.” 28 11 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 12 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 13 objection, the Court “need only satisfy itself that there is no clear error on the face of the 14 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 15 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 16 II. Analysis 17 Although Petitioner’s December 30, 2021 filing is not, as directed by the R&R, 18 captioned “Objections to Report and Recommendation,” see R&R at 6; Objs. at 1, and was 19 untimely, having been served on December 28, 2021, when the deadline for objections was 20 December 27, 2021, see R&R at 6; Objs. at 3, the Court, in its discretion, construes 21 Petitioner’s Ex Parte Request for Order Allowing Access to Petitioner’s Work Product 22 (ECF No. 26) as Objections to the R&R and analyzes said Objections on the merits despite 23 their tardiness. 24 The R&R construed Petitioner’s Request (ECF No. 20) as a motion for preliminary 25 injunction and recommended that this Court deny the motion. R&R at 1, 3. The R&R 26 27 28 1 In citing to the Petition, the Court utilizes the page numbers stamped in the upper right-hand corner of 1 noted that the Court lacked jurisdiction to grant the Request, given that Sheriff William 2 Gore is not a party to this action. Id. at 3–4. In addition, the R&R concluded the Request 3 would likely fail on the merits given that Petitioner had failed to establish actual injury as 4 a result of his alleged denial of access given that he had not shown an inability to meet any 5 filing deadline or present his claims. Id. at 4–5. The R&R noted that Petitioner may always 6 file a motion for extension of time in the future should his limited access to the law library 7 or his work product prove problematic. Id. at 6. 8 A. Petitioner’s Objections 9 Petitioner’s Objections do not present any new arguments, but merely rehash one of 10 the arguments in his original Request. Compare Req. at 3 (“Without access to the 11 Petitioner’s own work product the Petitioner cannot present a coherent argument supported 12 by evidence.”), with Objs. at 2 (“The confiscation of all the Petitioner’s legal work product 13 impermissibly comprises [sic] the Petitioner’s habeas proceedings and leaves the Petitioner 14 without redress.”). Petitioner also seeks essentially the same relief in both the Request and 15 his Objections. Compare Req. at 3 (“The Petitioner respectfully requests an order directing 16 Sheriff William Gore to . . . allow the Petitioner . . . access to . . . the Petitioner’s own work 17 product.”), with Objs. at 2 (“The Petitioner respectfully requests an order directing the 18 Sheriffs Dept. San Diego to allow the Petitioner access to his legal work product.”). 19 “A federal court may issue an injunction if it has personal jurisdiction over the 20 parties and subject matter jurisdiction over the claim; it may not attempt to determine the 21 rights of persons not before the court.” Zepeda v. United States I.N.S., 753 F.2d 719, 727 22 (9th Cir. 1983). “Under Federal Rule of Civil Procedure 65(d), an injunction binds only 23 ‘the parties to the action, their officers, agents, servants, employees, and attorneys, 24 and . . . those persons in active concert or participation with them who receive actual notice 25 of the order.’” Id. (quoting Fed. R. Civ. P. 65(d)). “The district court must, therefore, 26 tailor the injunction to affect only those persons over which it has power.” Id. (citations 27 omitted). Moreover, “[a] court’s equitable power lies only over the merits of the case or 28 controversy before it. When a plaintiff seeks injunctive relief based on claims not pled in 1 the complaint, the court does not have the authority to issue an injunction.” Pac. Radiation 2 Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). 3 The Court finds that it lacks the authority to issue the relief requested by Petitioner. 4 Not only does Petitioner seek injunctive relief against persons not named as parties in the 5 Petition—i.e., Sheriff William Gore and/or the San Diego Sheriff’s Department—the 6 requested relief is not based on the grounds raised in the Petition. Indeed, it appears that 7 Petitioner’s work product was seized by the Sheriff’s Department on or after September 8 30, 2021, after the Petition was filed. Compare Pet. at 1 (indicating Petition filed on August 9 3, 2021), with TRO Mot. at 2 (indicating that, instead of being paroled on September 30, 10 2021, Petitioner was transferred to the custody of the San Diego Sheriff’s Department and 11 his legal work product was “confiscated by the San Diego Sheriffs”). Accordingly, the 12 Court lacks the power to issue the injunctive relief requested by Petitioner. See, e.g., 13 Saddozai v. Hosey, No. 119CV01611DADHBK, 2021 WL 1117107, at *1 (E.D. Cal. Mar. 14 24, 2021) (“Absent a nexus between the injury claimed in the motion and the underlying 15 complaint, the court lacks the authority to grant plaintiff any relief. Moreover, the court 16 does not have jurisdiction over nonparties to the suit, and therefore cannot enjoin such 17 individuals in an order for injunctive relief.”) (citation omitted), report and 18 recommendation adopted, No. 119CV01611DADHBKPC, 2021 WL 1784854 (E.D. Cal. 19 May 5, 2021). 20 In light of the foregoing, the Court OVERRULES Petitioner’s Objections to the 21 R&R and ADOPTS the portions of the R&R to which Plaintiff objects. 22 B. Remainder of the R&R 23 Petitioner does not object to the remainder of the R&R, including, inter alia, the 24 R&R’s determination that Petitioner is not entitled to injunctive relief requiring Sheriff 25 William Gore to recognize Petitioner as a pro se litigant, to grant Petitioner law library 26 access, to grant Petitioner unrestricted correspondence with the Court, or to grant Petitioner 27 copy services and access to Lexis Nexis. See R&R at 2–6. Having found no clear error, 28 the Court ADOPTS the remainder of the R&R. 1 III. Conclusion 2 In light of the foregoing, the Court ADOPTS Magistrate Judge Goddard’s R&R 3 (ECF No. 23) in full, OVERRULES Petitioner’s objections thereto (ECF No. 26), and 4 DENIES Petitioner’s Request (ECF No. 20). 5 MOTION FOR TEMPORARY RESTRAINING ORDER 6 I. Legal Standard 7 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 8 restraining order (“TRO”). The standard for a temporary restraining order is identical to 9 the standard for a preliminary injunction (“PI”). Frontline Med. Assocs., Inc. v. Coventry 10 Healthcare Worker’s Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff 11 seeking preliminary relief must establish “[1] that he is likely to succeed on the merits, [2] 12 that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the 13 balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 14 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A TRO is an “extraordinary 15 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such 16 relief” and is “never awarded as a matter of right.” Id. at 22, 24. 17 As noted above, “[a] federal court may issue an injunction if it has personal 18 jurisdiction over the parties and subject matter jurisdiction over the claim; it may not 19 attempt to determine the rights of persons not before the court.” Zepeda, 753 F.2d at 727. 20 Further, “[a] court’s equitable power lies only over the merits of the case or controversy 21 before it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, 22 the court does not have the authority to issue an injunction.” Pac. Radiation Oncology, 23 810 F.3d at 633. 24 II. Analysis 25 Plaintiff’s TRO Motion appears to seek release on bail pending appeal pursuant to 26 California Penal Code section 1272. See TRO Mot. at 1. The relevant statute provides: 27 After conviction of an offense not punishable with death, a defendant who has made application for probation or who has 28 1 appealed may be admitted to bail . . . [a]s a matter of right, before judgment is pronounced pending application for probation in 2 cases of misdemeanors, or when the appeal is from a judgment 3 imposing imprisonment in cases of misdemeanors.

4 Cal. Penal Code § 1272(2). 5 The Court finds Petitioner’s request defective for several reasons. First, “[t]here is 6 no absolute federal constitutional right to bail.” Dawson v. Merkle, No. C 95-1523 SI, 7 1995 WL 548999, at *3 (N.D. Cal. Sept. 7, 1995) (citing, inter alia, Kelly v. Springett, 527 8 F.2d 1090, 1093 (9th Cir.1975)). Indeed, Petitioner invokes a California state statute in 9 seeking release on bail. However, Petitioner represents that he has exhausted the state 10 appeal process. See Pet. at 2–3, 5. Instead, Petitioner now seeks federal habeas relief. Yet 11 Petitioner has not pointed the Court to any authority demonstrating a right to bail pending 12 habeas review, nor has the Court found any such authority. Accordingly, Petitioner has 13 not established a right to the relief requested. 14 Second, “[t]he grant or denial of bail is within the sound discretion of a state trial 15 court.” See Dawson, 1995 WL 548999, at *3 (citing Finetti v. Harris, 609 F.2d 594, 600– 16 01 (2d Cir. 1979)). As previously noted, this Court only has jurisdiction over parties to 17 this action. However, Petitioner does not name the California Superior Court as a party to 18 this action. Accordingly, even were the requested relief merited, the Court is unable to 19 compel the state trial court, as a nonparty to this action, to release Petitioner pending appeal. 20 Finally, as explained above, preliminary relief must be based on the claims raised by 21 Petitioner in his Petition. Petitioner does not argue that the state court presently is violating 22 his constitutional due process rights by illegally denying him bail. See generally Pet.; cf. 23 Dawson, 1995 WL 548999, at *3 (where petitioner brought petition for bail pending 24 appeal, ordering respondents to show cause why the petition should not be granted). Thus, 25 as with Petitioner’s request for access to his legal work product, the Court lacks the power 26 to grant the requested relief. 27 / / / 28 / / / 1 Conclusion 2 In light of the foregoing, the Court DENIES Petitioner’s TRO Motion (ECF No. 3 }}22). 4 CONCLUSION 5 For the reasons provided above, the Court ADOPTS Magistrate Judge Goddard’s 6 R&R (ECF No. 23) in full, OVERRULES Petitioner’s objections thereto (ECF No. 26), 7 DENIES Petitioner’s Request (ECF No. 20). The Court further DENIES Petitioner’s 8 || TRO Motion (ECF No. 22). 9 IT IS SO ORDERED. 10 Dated: February 1, 2022 Mee tt \ f tie 11 on. Janis L. Sammartino D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28