1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR., Case No.: 21-cv-162-MMA (RBM)
12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 REQUEST TO SUPPLEMENT v. MOTION FOR PRELIMINARY 14 INJUNCTION; AND MARCUS POLLARD, 15 Defendant. [Doc. No. 45] 16
17 DENYING MOTION FOR 18 PRELIMINARY INJUNCTION
19 [Doc. No. 40] 20
21 22 Plaintiff Henry A. Jones, Jr., a California state inmate proceeding pro se, filed a 23 civil rights complaint pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth 24 Amendment rights. See Doc. No. 1 (“Compl.”). Plaintiff now moves for preliminary 25 injunctive relief in the form of a “transfer to the Medical Facility located in Stockton.” 26 Doc. No. 40. Defendant has filed a response in opposition to Plaintiff’s motion. See 27 Doc. No. 46. For the reasons set forth below, the Court GRANTS Plaintiff’s request to 28 supplement his motion and DENIES Plaintiff’s motion for preliminary injunction. 1 EX PARTE REQUEST TO SUPPLEMENT MOTION 2 As an initial matter, Plaintiff has filed an “ex parte motion requesting to file 3 suppl[e]ment pleadings pursuant to Fed. R. Civ. P 15(a).” Doc. No. 45. However, 4 Plaintiff specifically asks the Court to allow him “to amend [his] preliminary injunction,” 5 id. at 1, and the body of his motion seems aimed at that purpose. Plaintiff contends that 6 he received a COVID-19–related “Petition for Release” on April 23, 2022, but clarifies 7 that he does not seek preliminary injunctive relief in the form of release. Id. at 2. 8 Instead, he asserts he is seeking a preliminary injunction to be “housed in a medical 9 facility, or made single cell status.” Id.; see also id. at 2 (explaining he is not seeking 10 release “but rather placed in a facility/medical with adequate isolation . . . I am only 11 asking the Court[] w/ respec[]t to my Preliminary Injunction for housing purposes & 12 single cell status, and sent to another facility”). 13 Plaintiff filed this motion prior to Defendant’s opposition deadline, and Defendant 14 addressed its content in opposition. See Doc. No. 46 at 13. Accordingly, there is no 15 prejudice to Defendant if the Court considers the content of Plaintiff’s supplemental 16 filing. Therefore, to the extent Plaintiff seeks to supplement his motion for preliminary 17 injunction or clarify his request, the Court GRANTS his motion.1 18 MOTION FOR PRELIMINARY INJUNCTION 19 A. Legal Standard 20 Federal Rule of Civil Procedure 65(a) empowers the Court to grant preliminary 21 injunctive relief. Injunctive relief, whether temporary or permanent, is an “extraordinary 22 remedy, never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 23
24 25 1 However, to the extent Plaintiff seeks leave to amend his complaint pursuant to Federal Rule of Civil Procedure 15, as the title of his motion suggests, the Court DENIES the motion without prejudice. 26 Plaintiff is reminded that he does not need to supplement his complaint with evidence of exhaustion because exhaustion is an affirmative defense that Defendant bears the burden of proving. See Jones 27 v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their 28 1 22 (2008). A plaintiff seeking injunctive relief “must establish [1] that he is likely to 2 succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of 3 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an 4 injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 5 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). An injunction may 6 only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 7 U.S. at 22. 8 Requests for prospective relief are further limited by the Prison Litigation Reform 9 Act, which requires that the Court find the “relief [sought] is narrowly drawn, extends no 10 further than necessary to correct the violation of the federal right, and is the least 11 intrusive means necessary to correct the violation of the federal right.” 18 U.S.C. 12 § 3626(a)(1)(A). Section 3626(a)(2) places significant limits upon a court’s power to 13 grant preliminary injunctive relief to inmates, and “operates simultaneously to restrict the 14 equity jurisdiction of federal courts and to protect the bargaining power of prison 15 administrators—no longer may courts grant or approve relief that binds prison 16 administrators to do more than the constitutional minimum.” Gilmore v. People of the 17 State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). 18 B. Analysis 19 Plaintiff brings an Eighth Amendment claim against Defendant based upon 20 Defendant’s alleged decision to house COVID-19–infected inmates at R.J. Donovan 21 Correctional Facility’s (“RJD”) mental health building. According to Plaintiff he is still 22 housed at RJD; while he is currently receiving treatment at California Medical Facility 23 (“CMF”), he “will be transferred back” to RJD. Doc. No. 40 at 1. Accordingly, he 24 appears to seek either permanent placement at CMF or some other medical facility, or 25 single-cell status, presumably at RJD if he returns. 26 As a preliminary matter, Plaintiff does not have a constitutional right to receive 27 medical treatment from the physician or other medical provider of his choice. See, e.g., 28 Calloway v. Contra Costa Cty. Jail Corr. Officers, 2007 U.S. Dist. LEXIS 3038, 2007 1 WL 134581, at *31 (N.D. Cal. Jan.16, 2007) (rejecting “the proposition that a prisoner 2 has an Eighth Amendment right to receive treatment in the location or with the provider 3 of his choice”), aff’d, 321 F. App’x 605 (9th Cir. 2009). Nor does Plaintiff have a 4 constitutional right to incarceration in a prison of his choice. Pratt v. Rowland, 65 F.3d 5 802, 806 (9th Cir. 1995). Accordingly, to the extent Plaintiff seeks a transfer or 6 permanent placement at a particular facility, see Doc. No. 40 at 2, he is not entitled to that 7 relief. 8 In order to merit immediate injunctive relief, Plaintiff first must establish probable 9 success on the merits with respect to his claims. Among other things, this includes 10 demonstrating that Defendant has knowingly disregarded an excessive risk to Plaintiff’s 11 health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff must also 12 demonstrate that irreparable injury is likely in the absence of an injunction. See 13 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Although Plaintiff’s 14 claim has survived a Rule 12(b)(6) motion, Plaintiff has not demonstrated that his Eighth 15 Amendment claim is likely to succeed on the merits. See Poslof v. Martel, No. 3:18-cv- 16 00761-MMA-AGS, 2018 U.S. Dist. LEXIS 160370, at *15 (S.D. Cal. Sep.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR., Case No.: 21-cv-162-MMA (RBM)
12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 REQUEST TO SUPPLEMENT v. MOTION FOR PRELIMINARY 14 INJUNCTION; AND MARCUS POLLARD, 15 Defendant. [Doc. No. 45] 16
17 DENYING MOTION FOR 18 PRELIMINARY INJUNCTION
19 [Doc. No. 40] 20
21 22 Plaintiff Henry A. Jones, Jr., a California state inmate proceeding pro se, filed a 23 civil rights complaint pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth 24 Amendment rights. See Doc. No. 1 (“Compl.”). Plaintiff now moves for preliminary 25 injunctive relief in the form of a “transfer to the Medical Facility located in Stockton.” 26 Doc. No. 40. Defendant has filed a response in opposition to Plaintiff’s motion. See 27 Doc. No. 46. For the reasons set forth below, the Court GRANTS Plaintiff’s request to 28 supplement his motion and DENIES Plaintiff’s motion for preliminary injunction. 1 EX PARTE REQUEST TO SUPPLEMENT MOTION 2 As an initial matter, Plaintiff has filed an “ex parte motion requesting to file 3 suppl[e]ment pleadings pursuant to Fed. R. Civ. P 15(a).” Doc. No. 45. However, 4 Plaintiff specifically asks the Court to allow him “to amend [his] preliminary injunction,” 5 id. at 1, and the body of his motion seems aimed at that purpose. Plaintiff contends that 6 he received a COVID-19–related “Petition for Release” on April 23, 2022, but clarifies 7 that he does not seek preliminary injunctive relief in the form of release. Id. at 2. 8 Instead, he asserts he is seeking a preliminary injunction to be “housed in a medical 9 facility, or made single cell status.” Id.; see also id. at 2 (explaining he is not seeking 10 release “but rather placed in a facility/medical with adequate isolation . . . I am only 11 asking the Court[] w/ respec[]t to my Preliminary Injunction for housing purposes & 12 single cell status, and sent to another facility”). 13 Plaintiff filed this motion prior to Defendant’s opposition deadline, and Defendant 14 addressed its content in opposition. See Doc. No. 46 at 13. Accordingly, there is no 15 prejudice to Defendant if the Court considers the content of Plaintiff’s supplemental 16 filing. Therefore, to the extent Plaintiff seeks to supplement his motion for preliminary 17 injunction or clarify his request, the Court GRANTS his motion.1 18 MOTION FOR PRELIMINARY INJUNCTION 19 A. Legal Standard 20 Federal Rule of Civil Procedure 65(a) empowers the Court to grant preliminary 21 injunctive relief. Injunctive relief, whether temporary or permanent, is an “extraordinary 22 remedy, never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 23
24 25 1 However, to the extent Plaintiff seeks leave to amend his complaint pursuant to Federal Rule of Civil Procedure 15, as the title of his motion suggests, the Court DENIES the motion without prejudice. 26 Plaintiff is reminded that he does not need to supplement his complaint with evidence of exhaustion because exhaustion is an affirmative defense that Defendant bears the burden of proving. See Jones 27 v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their 28 1 22 (2008). A plaintiff seeking injunctive relief “must establish [1] that he is likely to 2 succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of 3 preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an 4 injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 5 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). An injunction may 6 only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 7 U.S. at 22. 8 Requests for prospective relief are further limited by the Prison Litigation Reform 9 Act, which requires that the Court find the “relief [sought] is narrowly drawn, extends no 10 further than necessary to correct the violation of the federal right, and is the least 11 intrusive means necessary to correct the violation of the federal right.” 18 U.S.C. 12 § 3626(a)(1)(A). Section 3626(a)(2) places significant limits upon a court’s power to 13 grant preliminary injunctive relief to inmates, and “operates simultaneously to restrict the 14 equity jurisdiction of federal courts and to protect the bargaining power of prison 15 administrators—no longer may courts grant or approve relief that binds prison 16 administrators to do more than the constitutional minimum.” Gilmore v. People of the 17 State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). 18 B. Analysis 19 Plaintiff brings an Eighth Amendment claim against Defendant based upon 20 Defendant’s alleged decision to house COVID-19–infected inmates at R.J. Donovan 21 Correctional Facility’s (“RJD”) mental health building. According to Plaintiff he is still 22 housed at RJD; while he is currently receiving treatment at California Medical Facility 23 (“CMF”), he “will be transferred back” to RJD. Doc. No. 40 at 1. Accordingly, he 24 appears to seek either permanent placement at CMF or some other medical facility, or 25 single-cell status, presumably at RJD if he returns. 26 As a preliminary matter, Plaintiff does not have a constitutional right to receive 27 medical treatment from the physician or other medical provider of his choice. See, e.g., 28 Calloway v. Contra Costa Cty. Jail Corr. Officers, 2007 U.S. Dist. LEXIS 3038, 2007 1 WL 134581, at *31 (N.D. Cal. Jan.16, 2007) (rejecting “the proposition that a prisoner 2 has an Eighth Amendment right to receive treatment in the location or with the provider 3 of his choice”), aff’d, 321 F. App’x 605 (9th Cir. 2009). Nor does Plaintiff have a 4 constitutional right to incarceration in a prison of his choice. Pratt v. Rowland, 65 F.3d 5 802, 806 (9th Cir. 1995). Accordingly, to the extent Plaintiff seeks a transfer or 6 permanent placement at a particular facility, see Doc. No. 40 at 2, he is not entitled to that 7 relief. 8 In order to merit immediate injunctive relief, Plaintiff first must establish probable 9 success on the merits with respect to his claims. Among other things, this includes 10 demonstrating that Defendant has knowingly disregarded an excessive risk to Plaintiff’s 11 health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff must also 12 demonstrate that irreparable injury is likely in the absence of an injunction. See 13 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Although Plaintiff’s 14 claim has survived a Rule 12(b)(6) motion, Plaintiff has not demonstrated that his Eighth 15 Amendment claim is likely to succeed on the merits. See Poslof v. Martel, No. 3:18-cv- 16 00761-MMA-AGS, 2018 U.S. Dist. LEXIS 160370, at *15 (S.D. Cal. Sep. 19, 2018) 17 (“The fact that plaintiff has met the pleading requirements allowing him to proceed with 18 the complaint does not, ipso facto, entitle him to a preliminary injunction.”) (internal 19 citation and quotation marks omitted). Moreover, Plaintiff fails to demonstrate that he 20 faces imminent harm if his motion is not granted. The mere assertion that he “will be 21 transferred back to RJD,” with no indication of when or what harm he will face upon 22 return is insufficient to entitle him to injunctive relief. Plaintiff already contracted 23 COVID-19, see Compl. at 32, and has been fully vaccinated against the virus since 24 October 2021. See Doc. No. 46-2 (“Ebert Decl.”) ¶ 12. Further, as of May 24, 2022, 25 RJD reports zero active COVID-19 cases among inmates.2 Therefore, any harm is 26
27 2 The Court GRANTS Defendant’s request for judicial notice and judicially notices both the CDCR’s 28 | || speculative at best and insufficient to entitle Plaintiff to preliminary injunctive relief 2 Further, assuming Plaintiff has met his Rule 65(a) burden, the Court lacks the 3 || authority to grant the relief he seeks. Plaintiff has been housed at CMF since 4 September 2021, and there are no current orders for his transfer. See Ebert Decl. Jf 6, 5 || 11. Accordingly, since Plaintiff has already been transferred, his requests for injunctive 6 || relief relating to his housing at or within RJD are now moot. Moreover, Plaintiff's claims 7 || arise out of events occurring at RJD, where Plaintiff 1s no longer housed, and the only 8 || defendant in this action is RJD’s warden. The mere fact that Plaintiff is challenging his 9 || treatment at RJD does not give rise to jurisdiction over CDCR prisons and personnel in 10 || general. See Summers v. Earth Island Inst., 555 U.S. 488, 491-93 (2009); Mayfield 11 || v. United States, 599 F.3d 964, 969 (9th Cir. 2010). As such, the Court lacks the 12 || authority to order anyone at CMF, 7.e., officials not subject to the Court’s jurisdiction, to 13 ||make any housing decisions. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 14 100, 112 (1969). 15 CONCLUSION 16 Based on the foregoing, the Court DENIES Plaintiff's motion for preliminary 17 || injunctive relief. 18 IT IS SO ORDERED. 19 || Dated: May 25, 2022 20 BWMiidul UM _Llihktr 21 HON. MICHAEL M. ANELLO 22 United States District Judge 23 24 25 26 || 27 || available at https://www.cdcr.ca.gov/facility-locator/tjd/ (last visited May 24, 2022), and CDCR’s || COVID-19 Tracking system, see Population COVID-19 Tracking, CDCR available at https://www.cder.ca.gov/covid19/population-status-tracking/ (last visited May 24, 2022).