1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MUHAMMAD KHAN, 11 Case No. 23-cv-06141 BLF (PR) Plaintiff, 12 AMENDED ORDER DENYING v. MOTION FOR TEMPORARY 13 RESTRAINING ORDER AND PRELIMINARY INJUNCTION HALEY MADSEN, et al., 14 Defendants. 15 (Docket No. 27) 16
17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against prison staff at the Correctional Training Facility (“CTF”), where 20 he is currently housed. The “Final Amended Complaint” (FAC) filed on January 22, 2024, 21 is the operative complaint in this matter. Dkt. No. 11. Plaintiff’s motion for leave to 22 proceed In Forma Pauperis was denied on March 14, 2024, such that the full filing fee was 23 due before this matter could proceed. Dkt. No. 15. After several extensions of time, 24 Plaintiff paid the full filing fee on May 3, 2024. Dkt. No. 24. 25 Plaintiff filed a “notice/motions for update on screening and motion for a 26 tro/preliminary and permanent injunction.” Dkt. No. 27. Plaintiff is advised that although 27 he filed the matter several months ago, the Court could not proceed with screening until 1 the matter in due course in a separate order. The Court herein addresses Plaintiff’s motion 2 for a temporary restraining order and permanent injunction. 3 4 DISCUSSION 5 A. Plaintiff’s Claims 6 In the FAC, Plaintiff alleges a series of events and circumstances since September 7 2019, involving allegations of harassment and several disciplinary actions based on “false” 8 Rules Violation Reports (“RVR”) processed by Defendants. These RVRs involved the 9 loss of good time credits. 10 Plaintiff claims he was harassed by Defendants H. Madsen and A. Stephens since 11 September 4, 2019, when Defendant Stephens conducted an “invasive” and sexually 12 abusive search of Plaintiff. Dkt. No. 11 at 11. 13 Defendants Madsen began to target Plaintiff from May 2020, with “non-stop 14 harassment and reprisals for engaging in protected conduct.” Id. at 13. He alleges that she 15 first falsely accused him of exposing himself during a security check. Id. at 14. This 16 resulted in his placement in the administrative segregation unit (“ASU”) and made to wear 17 an Exposure Control Jumpsuit (“ECJ”). Id. at 15. Plaintiff grieved his placement in ASU, 18 the disciplinary action, denial of his TV, and the ECJ. Id. at 16. Plaintiff claims he was 19 denied rights and privileges while in ASU which had unsanitary and unsafe conditions. Id. 20 at 18. He claims that he filed numerous grievances which were misplaced or thrown out, 21 so that he was unable to exhaust his claims. Id. at 18. 22 Plaintiff also asserts that Defendant Madsen mishandled his property while packing 23 it for his removal to ASU on March 29, 2020. Id. at 18-19. He claims that Defendant 24 Madsen also falsely alleged finding a cell phone among his property. Id. at 19-20. He was 25 later found guilty at the disciplinary hearing on the matter. Id. at 20. 26 Plaintiff states that after he was placed in ASU, Defendant Madsen came to his cell 1 correct. Id. He claims that Defendant Madsen later filed another false RVR “stating 2 [Plaintiff] had ripped the items from [her] hands and delayed her”; Plaintiff denies this 3 allegation. Id. Plaintiff claims that an inmate told him that Defendants Madsen and Reed 4 were laughing and joking about “what they did” to Plaintiff, and that Defendant Reed 5 instructed Defendant Madsen to file another fraudulent RVR against Plaintiff “to raise 6 [Plaintiff’s] points and transfer him out.” Id. at 21. Defendant Reed later conducted the 7 hearing on this RVR and denied Plaintiff due process. Id. Plaintiff appealed the matter but 8 did not receive a response. Id. 9 Plaintiff had a hearing on the indecent exposure RVR in April 2021, at which Lt. J. 10 Gonzales found him guilty and denied him due process. Id. at 22. Plaintiff left for court 11 shortly after and did not receive a final copy of the decision until his return to CTF in 12 October 2023. Id. He states that he appealed the matter, which has not been exhausted as 13 of the date of the amended complaint. Id. 14 Plaintiff had a classification hearing on June 5, 2020, regarding his retention in 15 ASU, at which he alleges he was denied due process. Id. at 18. 16 Plaintiff claims that Defendants participated in “stacking” these three RVRs, 17 (prepared by Defendant Madsen), which resulting in “additional points” and multiple 18 losses of credit. Id. at 22. He asserts that but for these false RVRs, he would not be 19 serving an additional 90 days for indecent exposure and 61 days for the possession of a cell 20 phone. Id. at 23. He asserts that he should get no more than 30 days loss of good time 21 credits. Id. 22 Plaintiff claims the following, among other allegations: (1) Defendant Stephens 23 violated the Fourth and Eighth Amendments based on her actions during the invasive 24 search; (2) Defendant Warden Koenig failed to act in response to or to prevent the actions 25 of Defendants Stephens and Madsen; (3) Defendant Madsen violated the First Amendment 26 by retaliating against him in various ways; (4) Defendant Madsen violated the Fourteenth 1 First Amendment right to freedom of religion by disposing of his religious materials; (6) 2 Defendant Madsen violated the Fourth Amendment by her unreasonable search and seizure 3 of his cell; (7) Defendant Madsen violated due process by placing Plaintiff in ASU without 4 a hearing; Defendant Reed violated due process during the disciplinary proceedings; (8) 5 Defendant Bojorquez violated due process during the disciplinary proceedings and acted in 6 retaliation; (9) Defendant Ramon violated the Eighth Amendment in forcing Plaintiff to 7 wear the ECJ; (10) Defendant Galvan violated Plaintiff’s First Amendment rights while he 8 was in county jail; (11) Defendant Monroy violated the First Amendment and due process 9 with regard to Plaintiff’s grievances; and (12) Defendant Gonzalez violated due process 10 and acted in concert with Defendant Madsen to retaliate against him during the 11 disciplinary proceedings. Id. at 29-33. 12 B. Motion for TRO or Preliminary/Permanent Injunction 13 Plaintiff seeks a court order for a rehearing on “RVR Log 7003213 as grieved and 14 exhausted on OCG Log 478844, as well as in OCG Log 503324.” Dkt. No. 27 at 1. 15 Plaintiff asserts that new evidence was discovered after the fact. Id. He asserts that he is 16 unlawfully imprisoned and serving time for the fraudulent RVRs. Id. 17 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a 18 preliminary injunction or temporary restraining order (“TRO”). Prior to granting a 19 preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 20 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the 21 parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). 22 Accordingly, the motion for a preliminary injunction shall not be decided until Defendant 23 has been served in this action and given an opportunity to be heard.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MUHAMMAD KHAN, 11 Case No. 23-cv-06141 BLF (PR) Plaintiff, 12 AMENDED ORDER DENYING v. MOTION FOR TEMPORARY 13 RESTRAINING ORDER AND PRELIMINARY INJUNCTION HALEY MADSEN, et al., 14 Defendants. 15 (Docket No. 27) 16
17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against prison staff at the Correctional Training Facility (“CTF”), where 20 he is currently housed. The “Final Amended Complaint” (FAC) filed on January 22, 2024, 21 is the operative complaint in this matter. Dkt. No. 11. Plaintiff’s motion for leave to 22 proceed In Forma Pauperis was denied on March 14, 2024, such that the full filing fee was 23 due before this matter could proceed. Dkt. No. 15. After several extensions of time, 24 Plaintiff paid the full filing fee on May 3, 2024. Dkt. No. 24. 25 Plaintiff filed a “notice/motions for update on screening and motion for a 26 tro/preliminary and permanent injunction.” Dkt. No. 27. Plaintiff is advised that although 27 he filed the matter several months ago, the Court could not proceed with screening until 1 the matter in due course in a separate order. The Court herein addresses Plaintiff’s motion 2 for a temporary restraining order and permanent injunction. 3 4 DISCUSSION 5 A. Plaintiff’s Claims 6 In the FAC, Plaintiff alleges a series of events and circumstances since September 7 2019, involving allegations of harassment and several disciplinary actions based on “false” 8 Rules Violation Reports (“RVR”) processed by Defendants. These RVRs involved the 9 loss of good time credits. 10 Plaintiff claims he was harassed by Defendants H. Madsen and A. Stephens since 11 September 4, 2019, when Defendant Stephens conducted an “invasive” and sexually 12 abusive search of Plaintiff. Dkt. No. 11 at 11. 13 Defendants Madsen began to target Plaintiff from May 2020, with “non-stop 14 harassment and reprisals for engaging in protected conduct.” Id. at 13. He alleges that she 15 first falsely accused him of exposing himself during a security check. Id. at 14. This 16 resulted in his placement in the administrative segregation unit (“ASU”) and made to wear 17 an Exposure Control Jumpsuit (“ECJ”). Id. at 15. Plaintiff grieved his placement in ASU, 18 the disciplinary action, denial of his TV, and the ECJ. Id. at 16. Plaintiff claims he was 19 denied rights and privileges while in ASU which had unsanitary and unsafe conditions. Id. 20 at 18. He claims that he filed numerous grievances which were misplaced or thrown out, 21 so that he was unable to exhaust his claims. Id. at 18. 22 Plaintiff also asserts that Defendant Madsen mishandled his property while packing 23 it for his removal to ASU on March 29, 2020. Id. at 18-19. He claims that Defendant 24 Madsen also falsely alleged finding a cell phone among his property. Id. at 19-20. He was 25 later found guilty at the disciplinary hearing on the matter. Id. at 20. 26 Plaintiff states that after he was placed in ASU, Defendant Madsen came to his cell 1 correct. Id. He claims that Defendant Madsen later filed another false RVR “stating 2 [Plaintiff] had ripped the items from [her] hands and delayed her”; Plaintiff denies this 3 allegation. Id. Plaintiff claims that an inmate told him that Defendants Madsen and Reed 4 were laughing and joking about “what they did” to Plaintiff, and that Defendant Reed 5 instructed Defendant Madsen to file another fraudulent RVR against Plaintiff “to raise 6 [Plaintiff’s] points and transfer him out.” Id. at 21. Defendant Reed later conducted the 7 hearing on this RVR and denied Plaintiff due process. Id. Plaintiff appealed the matter but 8 did not receive a response. Id. 9 Plaintiff had a hearing on the indecent exposure RVR in April 2021, at which Lt. J. 10 Gonzales found him guilty and denied him due process. Id. at 22. Plaintiff left for court 11 shortly after and did not receive a final copy of the decision until his return to CTF in 12 October 2023. Id. He states that he appealed the matter, which has not been exhausted as 13 of the date of the amended complaint. Id. 14 Plaintiff had a classification hearing on June 5, 2020, regarding his retention in 15 ASU, at which he alleges he was denied due process. Id. at 18. 16 Plaintiff claims that Defendants participated in “stacking” these three RVRs, 17 (prepared by Defendant Madsen), which resulting in “additional points” and multiple 18 losses of credit. Id. at 22. He asserts that but for these false RVRs, he would not be 19 serving an additional 90 days for indecent exposure and 61 days for the possession of a cell 20 phone. Id. at 23. He asserts that he should get no more than 30 days loss of good time 21 credits. Id. 22 Plaintiff claims the following, among other allegations: (1) Defendant Stephens 23 violated the Fourth and Eighth Amendments based on her actions during the invasive 24 search; (2) Defendant Warden Koenig failed to act in response to or to prevent the actions 25 of Defendants Stephens and Madsen; (3) Defendant Madsen violated the First Amendment 26 by retaliating against him in various ways; (4) Defendant Madsen violated the Fourteenth 1 First Amendment right to freedom of religion by disposing of his religious materials; (6) 2 Defendant Madsen violated the Fourth Amendment by her unreasonable search and seizure 3 of his cell; (7) Defendant Madsen violated due process by placing Plaintiff in ASU without 4 a hearing; Defendant Reed violated due process during the disciplinary proceedings; (8) 5 Defendant Bojorquez violated due process during the disciplinary proceedings and acted in 6 retaliation; (9) Defendant Ramon violated the Eighth Amendment in forcing Plaintiff to 7 wear the ECJ; (10) Defendant Galvan violated Plaintiff’s First Amendment rights while he 8 was in county jail; (11) Defendant Monroy violated the First Amendment and due process 9 with regard to Plaintiff’s grievances; and (12) Defendant Gonzalez violated due process 10 and acted in concert with Defendant Madsen to retaliate against him during the 11 disciplinary proceedings. Id. at 29-33. 12 B. Motion for TRO or Preliminary/Permanent Injunction 13 Plaintiff seeks a court order for a rehearing on “RVR Log 7003213 as grieved and 14 exhausted on OCG Log 478844, as well as in OCG Log 503324.” Dkt. No. 27 at 1. 15 Plaintiff asserts that new evidence was discovered after the fact. Id. He asserts that he is 16 unlawfully imprisoned and serving time for the fraudulent RVRs. Id. 17 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a 18 preliminary injunction or temporary restraining order (“TRO”). Prior to granting a 19 preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 20 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the 21 parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). 22 Accordingly, the motion for a preliminary injunction shall not be decided until Defendant 23 has been served in this action and given an opportunity to be heard. 24 On the other hand, a TRO may be granted under Rule 65(b) without written or oral 25 notice to the adverse party or that party’s attorney only if: (1) it clearly appears from 26 specific facts shown by affidavit or by the verified complaint that immediate and 1 the party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies in 2 writing the efforts, if any, which have been made to give notice and the reasons supporting 3 the claim that notice should not be required. See Fed. R. Civ. P. 65(b). 4 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 5 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 6 Lopez v. Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis 7 in original). The standard for issuing a TRO is similar to that required for a preliminary 8 injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 9 1008 (9th Cir. 1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary 10 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 11 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 12 favor, and that an injunction is in the public interest.” Winter v. Natural Resources 13 Defense Council, Inc., 555 U.S. 7, 20 (2008). Where the court concludes the movant has 14 failed to show a likelihood of success on the merits, the court, in its discretion, need not 15 consider whether the movant would suffer irreparable injury. Guzman v. Shewry, 552 F.3d 16 941, 948 (9th Cir. 2009). 17 Here, Defendants have not been served in this action, and Plaintiff does not indicate 18 that he has otherwise notified them of the claims in this matter under Rule 65(b), i.e., 19 certified in writing the efforts, if any, which have been made to give notice and the reasons 20 supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b)(1)(B). 21 Plaintiff asserts that he filed a grievance which notified Defendants that he wishes to 22 pursue a TRO/Preliminary injunction. Dkt. No. 27 at 2. However, there is no indication 23 that the specific Defendants named in this action are aware of this grievance so that it can 24 be said that they have been properly noticed. Moreover, the grievance addresses 25 “respondents” and does not identify any specific Defendant in this action such that it 26 would have been brought to their attention. Id. at 3. 1 a TRO at this time. With regard to the first Winter factor, Plaintiff asserts that he is likely 2 |} to succeed on the merits because the “law allows for rehearing on new since discovery 3 evidence.” Dkt. No. 2 at 3. However, this complaint involves the loss of good time credits 4 || which is in the province of habeas corpus. Hill v. McDonough, 547 U.S. 573, 579 (2006); 5 || Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). A challenge to a 6 || disciplinary finding that resulted in assessment of time credits must be brought in habeas if 7 || reinstatement of the time credits would “necessarily spell speedier release.” See Skinner v. 8 || Switzer, 561 U.S. 521,525 (2011). Accordingly, the portion of this action which 9 || challenges those RVRs involving time credits must be dismissed to filing as a habeas 10 || action. Furthermore, due to the passage of time since the underlying events occurred in 11 2020, Plaintiff would also have to establish that his claims are not time-barred. As such, 12 the Court is not persuaded that Plaintiff has shown likelihood of success of those claims in 5 13 this action. S 14 Having failed to establish all the Winter factors, it cannot be said that Plaintiff has 3 15 || established by a clear showing that he merits the granting of the extraordinary remedy of a A 16 || preliminary injunction. See Lopez, 680 F.3d at 1072.
17 18 CONCLUSION 19 For the reasons discussed above, Plaintiffs motion for a TRO and preliminary 20 || injunction is DENIED as without merit. Dkt. No. 27. 1 This order terminates Docket No. 27. 22 IT IS SO ORDERED. 23 Dated: _ June 11,2024 _ fa nfrccnan 54 BETH LAB SON FREEMAN United States District Judge 25 26 |) PRO-SEXBLECR 2406121 Khan deny 27