(PC) Bustamante v. Spearman

Opinion

MIGUEL ADOLFO BUSTAMANTE, No. 2:18-CV-0057-WBS-DMC-P Plaintiff, v. ORDER J. SCHUSTER, et al., Defendants. Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. Before the Court is Plaintiff’s motion for an order directing that he be given access to the law library at Southwest County Detention Center where he is apparently presently incarcerated, as well as access to a “legal runner.”1 ECF No. 32. The Court construes Plaintiff’s motion as a motion for injunctive relief. The legal principles applicable to requests for injunctive relief, such as a temporary restraining order or preliminary injunction, are well established. To prevail, the moving party must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

1 Plaintiff also filed a motion to update his address, which the clerk’s office has done. controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, however, issue an order against individuals who are not parties to the action. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another prison renders the request for injunctive relief moot, unless there is some evidence of an expectation of being transferred back. See Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). Plaintiff’s complaint encompasses a claim for alleged violation of his First Amendment right of access to the courts. See ECF No. 17. His complaint alleges constitutional deprivations occurring at High Desert State Prison. Id. Plaintiff, however, is presently held at Southwest County Detention Center in Riverside County, California, which is the institution relevant to his current motion. See ECF No. 32 at 2. It is clear that Plaintiff seeks an order directing the Riverside County Sheriff’s Department to provide Plaintiff with “full access” to a law library. Id. at 4–5. But the language of Plaintiff’s motion is otherwise disorganized and unclear. Plaintiff discusses a law library “kiosk” that provides full research capabilities, but which allegedly does not include printing or photocopy capabilities. Id. at 4. It is unclear whether he has access to such a kiosk, and seeks printing and photocopy abilities, or whether he lacks access to a kiosk with research capabilities altogether. See id. Plaintiff further seeks an order establishing Kathleen McCallum, ostensibly an ADA coordinator with the jail, as Plaintiff’s “legal runner” for the purposes of complying with the procedural rules and filing deadlines. Id. at 5. The Court finds injunctive relief is not warranted. The Court’s analysis is the same irrespective of the outcome of the kiosk question. Firstly, Plaintiff has not shown a likelihood of success on the merits of his First Amendment access to the courts claim. Plaintiff has not alleged any actual injury. “Actual injury” is prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-frivolous claim. See Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Second, Plaintiff has not demonstrated that he is likely to suffer any irreparable harm. He has not alleged that the lack of printing or photocopying on the kiosk (or access to the kiosk generally) has hindered his ability to litigate his lawsuit. Indeed, he has filed multiple motions with the Court (including motions with citations to case and statutory authority). See id. at 10. To the extent Plaintiff is being denied access to the courts, he has remedy at law in the form of this action. Additionally, in moving for an injunction against the Riverside County Sheriff's Department and Kathleen McCallum, Plaintiff seeks injunctive relief against individuals who are not party to this § 1983 suit, which the Court cannot order. See Zenith Radio Corp., 395 U.S. at 112. Based on the foregoing, the undersigned recommends that Plaintiff's motion for injunctive relief, ECF No. 32, be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Dated: January 5, 2021 UNITED STATES MAGISTRATE JUDGE