1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK FREGIA, Case No. 1:21-cv-01068-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR DEFENDANT RIDGE TO OBTAIN HIS 13 v. OWN COUNSEL (ECF No. 91) 14 SAVAGE, et al., ORDER DENYING PLAINTIFF’S MOTION 15 Defendants. FOR STAY OF PROCEEDINGS (ECF No. 90) 16 FINDINGS AND RECOMMENDATIONS 17 REGARDING PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTION 18 (ECF No. 90) 19 FOURTEEN (14) DAY DEADLINE 20 21 Plaintiff Mark Fregia (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 23 Defendants Ridge and Savage based on Plaintiff’s claims that Defendants were deliberately 24 indifferent to Plaintiff’s serious medical needs by continuing to prescribe medications that caused 25 him to suffer lichen planus, and then failed to treat such skin condition. 26 Pending before the Court are Defendant Savage’s motion for summary judgment, (ECF 27 No. 75), and Defendant Ridge’s motion for summary judgment, (ECF No. 81). As of October 21, 28 2022, both motions are fully briefed. (ECF Nos. 82, 85–88.) 1 On November 29, 2022, Plaintiff filed a notice to the Court regarding his property. (ECF 2 No. 89.) Plaintiff then filed a request for emergency injunction and stay of further proceedings on 3 December 27, 2022, (ECF No. 90), and a motion for Defendant Ridge to obtain his own counsel 4 on January 5, 2023, (ECF No. 91). Defendants did not file responses to any of these filings, and 5 the time to do so has expired. Plaintiff’s motion is deemed submitted. Local Rule 230(l). 6 I. Plaintiff’s Allegations 7 In his filings, Plaintiff states that between November 13, 2022 and November 14, 2022, 8 correctional officers and supervisors confiscated Plaintiff’s property while he was being evaluated 9 in a suicide watch cell, destroying all of his personal property and legal property related to this 10 action and his other pending case, Fregia v. Chen, Case No. 1:20-cv-01024-ADA-EPG. (ECF 11 Nos. 89, 90.) Plaintiff alleges that this group of correctional staff, which does not include 12 Defendants Ridge or Savage, purposely destroyed his property in retaliation for Plaintiff’s 13 lawsuits against CDCR staff. Plaintiff argues that he cannot proceed in forma pauperis or in pro 14 per without these documents and requests that the Court stay all further proceedings until CDCR 15 staff produces these documents, video of the incident, including the 1083 property log, or that 16 these documents can be reissued and the appropriate investigation be done. (ECF No. 90.) 17 In his motion for Defendant Ridge to obtain new counsel, Plaintiff further alleges that the 18 bulk of his property, that he previously alleged had all been destroyed, was returned, there were 19 several missing legal documents pertaining to his pending cases, including the instant action. 20 (ECF No. 91, p. 2.) Plaintiff alleges that none of his property was returned until two weeks after 21 the confiscation, after the Magistrate Judge in Fregia v. Chen ordered the Warden of Mule Creek 22 State Prison to respond to his allegations. Plaintiff argues that his property was only returned due 23 to that order. Plaintiff goes on to allege further wrongdoing by defense counsel in Fregia v. Chen 24 related to Plaintiff’s property issues, which the Court declines to address here. Plaintiff otherwise 25 argues that it is a conflict of interest for Deputy Attorney General Buranich to continue to 26 represent Defendant Ridge in this action, because Plaintiff believes that there is an improper 27 connection between Mr. Buranich and defense counsel in Fregia v. Chen, Deputy Attorney 28 General Singer. (Id. at 4.) Plaintiff further contends that the Attorney General’s Office is 1 responsible for investigating alleged crime when an agency is involved, and Defendants should 2 provide their own representation not paid by taxpayers. (Id.) 3 II. Motion for Defendant Ridge to Obtain His Own Counsel 4 The Court finds no merit to Plaintiff’s arguments that a conflict of interest exists due to 5 the Attorney General’s representation of Defendant Ridge in this action, or to the claim that there 6 is some improper connection between defense counsel in this action and defense counsel in 7 Plaintiff’s other pending litigation. Plaintiff cites only to cases from the Seventh and Tenth 8 Circuits that do not control here and do not support his arguments that counsel from the Attorney 9 General’s Office cannot represent Defendant. (ECF No. 91, p. 4.) The Court is also not aware of 10 any such authority. The request is denied. 11 III. Motion for Stay of Proceedings 12 The district court “has broad discretion to stay proceedings as an incident to its power to 13 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North 14 American Co., 299 U.S. 248, 254 (1936)). “Generally, stays should not be indefinite in nature.” 15 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066–67 (9th Cir. 2007). 16 If a stay is especially long or its term is indefinite, a greater showing is required to justify it. 17 Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000). The party seeking the stay bears the burden 18 of establishing the need to stay the action. Clinton, 520 U.S. at 708. 19 As noted above, Defendant Ridge’s and Defendant Savage’s motions for summary 20 judgment were fully briefed prior to the confiscation of Plaintiff’s property. Though Plaintiff 21 argues that he cannot proceed in this litigation without his property, and that certain legal 22 documents related to this action have not yet been returned, Plaintiff does not specify why a stay 23 of this action is necessary. No further briefing is required for either motion for summary 24 judgment, and there are no other pending deadlines at this time. In addition, Plaintiff has not 25 specified what documents related to this action he is still missing, or how he will be prevented 26 from litigating this case if they are not returned or replaced. 27 Accordingly, Plaintiff has failed to carry his burden of establishing the need to stay this 28 action, and the motion is denied. 1 IV. Motion for Emergency Injunction 2 Plaintiff seeks an injunction on the named staff members at Mule Creek State Prison to 3 make them answer the Court’s questions about the validity of Plaintiff’s claims, and an order for 4 CDCR to return all legal documentation and papers which were removed from Plaintiff’s cell. 5 (ECF No. 90, p. 3.) 6 A. Legal Standard 7 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 8 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 9 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 10 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 11 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 12 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 13 omitted).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK FREGIA, Case No. 1:21-cv-01068-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR DEFENDANT RIDGE TO OBTAIN HIS 13 v. OWN COUNSEL (ECF No. 91) 14 SAVAGE, et al., ORDER DENYING PLAINTIFF’S MOTION 15 Defendants. FOR STAY OF PROCEEDINGS (ECF No. 90) 16 FINDINGS AND RECOMMENDATIONS 17 REGARDING PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTION 18 (ECF No. 90) 19 FOURTEEN (14) DAY DEADLINE 20 21 Plaintiff Mark Fregia (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 23 Defendants Ridge and Savage based on Plaintiff’s claims that Defendants were deliberately 24 indifferent to Plaintiff’s serious medical needs by continuing to prescribe medications that caused 25 him to suffer lichen planus, and then failed to treat such skin condition. 26 Pending before the Court are Defendant Savage’s motion for summary judgment, (ECF 27 No. 75), and Defendant Ridge’s motion for summary judgment, (ECF No. 81). As of October 21, 28 2022, both motions are fully briefed. (ECF Nos. 82, 85–88.) 1 On November 29, 2022, Plaintiff filed a notice to the Court regarding his property. (ECF 2 No. 89.) Plaintiff then filed a request for emergency injunction and stay of further proceedings on 3 December 27, 2022, (ECF No. 90), and a motion for Defendant Ridge to obtain his own counsel 4 on January 5, 2023, (ECF No. 91). Defendants did not file responses to any of these filings, and 5 the time to do so has expired. Plaintiff’s motion is deemed submitted. Local Rule 230(l). 6 I. Plaintiff’s Allegations 7 In his filings, Plaintiff states that between November 13, 2022 and November 14, 2022, 8 correctional officers and supervisors confiscated Plaintiff’s property while he was being evaluated 9 in a suicide watch cell, destroying all of his personal property and legal property related to this 10 action and his other pending case, Fregia v. Chen, Case No. 1:20-cv-01024-ADA-EPG. (ECF 11 Nos. 89, 90.) Plaintiff alleges that this group of correctional staff, which does not include 12 Defendants Ridge or Savage, purposely destroyed his property in retaliation for Plaintiff’s 13 lawsuits against CDCR staff. Plaintiff argues that he cannot proceed in forma pauperis or in pro 14 per without these documents and requests that the Court stay all further proceedings until CDCR 15 staff produces these documents, video of the incident, including the 1083 property log, or that 16 these documents can be reissued and the appropriate investigation be done. (ECF No. 90.) 17 In his motion for Defendant Ridge to obtain new counsel, Plaintiff further alleges that the 18 bulk of his property, that he previously alleged had all been destroyed, was returned, there were 19 several missing legal documents pertaining to his pending cases, including the instant action. 20 (ECF No. 91, p. 2.) Plaintiff alleges that none of his property was returned until two weeks after 21 the confiscation, after the Magistrate Judge in Fregia v. Chen ordered the Warden of Mule Creek 22 State Prison to respond to his allegations. Plaintiff argues that his property was only returned due 23 to that order. Plaintiff goes on to allege further wrongdoing by defense counsel in Fregia v. Chen 24 related to Plaintiff’s property issues, which the Court declines to address here. Plaintiff otherwise 25 argues that it is a conflict of interest for Deputy Attorney General Buranich to continue to 26 represent Defendant Ridge in this action, because Plaintiff believes that there is an improper 27 connection between Mr. Buranich and defense counsel in Fregia v. Chen, Deputy Attorney 28 General Singer. (Id. at 4.) Plaintiff further contends that the Attorney General’s Office is 1 responsible for investigating alleged crime when an agency is involved, and Defendants should 2 provide their own representation not paid by taxpayers. (Id.) 3 II. Motion for Defendant Ridge to Obtain His Own Counsel 4 The Court finds no merit to Plaintiff’s arguments that a conflict of interest exists due to 5 the Attorney General’s representation of Defendant Ridge in this action, or to the claim that there 6 is some improper connection between defense counsel in this action and defense counsel in 7 Plaintiff’s other pending litigation. Plaintiff cites only to cases from the Seventh and Tenth 8 Circuits that do not control here and do not support his arguments that counsel from the Attorney 9 General’s Office cannot represent Defendant. (ECF No. 91, p. 4.) The Court is also not aware of 10 any such authority. The request is denied. 11 III. Motion for Stay of Proceedings 12 The district court “has broad discretion to stay proceedings as an incident to its power to 13 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North 14 American Co., 299 U.S. 248, 254 (1936)). “Generally, stays should not be indefinite in nature.” 15 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066–67 (9th Cir. 2007). 16 If a stay is especially long or its term is indefinite, a greater showing is required to justify it. 17 Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000). The party seeking the stay bears the burden 18 of establishing the need to stay the action. Clinton, 520 U.S. at 708. 19 As noted above, Defendant Ridge’s and Defendant Savage’s motions for summary 20 judgment were fully briefed prior to the confiscation of Plaintiff’s property. Though Plaintiff 21 argues that he cannot proceed in this litigation without his property, and that certain legal 22 documents related to this action have not yet been returned, Plaintiff does not specify why a stay 23 of this action is necessary. No further briefing is required for either motion for summary 24 judgment, and there are no other pending deadlines at this time. In addition, Plaintiff has not 25 specified what documents related to this action he is still missing, or how he will be prevented 26 from litigating this case if they are not returned or replaced. 27 Accordingly, Plaintiff has failed to carry his burden of establishing the need to stay this 28 action, and the motion is denied. 1 IV. Motion for Emergency Injunction 2 Plaintiff seeks an injunction on the named staff members at Mule Creek State Prison to 3 make them answer the Court’s questions about the validity of Plaintiff’s claims, and an order for 4 CDCR to return all legal documentation and papers which were removed from Plaintiff’s cell. 5 (ECF No. 90, p. 3.) 6 A. Legal Standard 7 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 8 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 9 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 10 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 11 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 12 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 13 omitted). 14 Federal courts are courts of limited jurisdiction and in considering a request for 15 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 16 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 17 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 18 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 19 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 20 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 21 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation 22 of the Federal right, and is the least intrusive means necessary to correct the violation of the 23 Federal right.” 24 Furthermore, the pendency of this action does not give the Court jurisdiction over prison 25 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. 26 United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties 27 in this action and to the viable legal claims upon which this action is proceeding. Summers, 555 28 U.S. at 491−93; Mayfield, 599 F.3d at 969. 1 B. Discussion 2 Plaintiff has not met the requirements for the injunctive relief he seeks in this motion. 3 Although Plaintiff’s complaint has been screened and found to state cognizable claims, this does 4 not mean that Plaintiff has shown a likelihood of success on the merits. In fact, Defendants have 5 both filed motions for summary judgment which may resolve all claims in their favor. These 6 motions remain pending before the Court. 7 In addition, this action proceeds only against Defendants Ridge and Savage, and at this 8 time the Court lacks jurisdiction over any of the named individuals employed at Mule Creek State 9 Prison, or CDCR staff generally, to issue an order regarding the return or restoration of Plaintiff’s 10 property or conducting an investigation of Plaintiff’s allegations. 11 Finally, Plaintiff’s motion makes no showing that he will suffer irreparable harm in the 12 absence of an injunction. As discussed above, Plaintiff has already filed oppositions to both 13 pending motions for summary judgment, there are other pending deadlines in this action, and 14 Plaintiff has identified no other harm he will suffer in the course of the instant action. 15 V. Order and Recommendation 16 Accordingly, the Court HEREBY ORDERS that: 17 1. Plaintiff’s motion for Defendant Ridge to obtain his own counsel, (ECF No. 91), is 18 DENIED; and 19 2. Plaintiff’s motion for a stay of proceedings, (ECF No. 90), is DENIED. 20 * * * 21 Furthermore, it is HEREBY RECOMMENDED that Plaintiff’s motion for emergency 22 injunction, (ECF No. 90), be DENIED. 23 These Findings and Recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of the “right to challenge the magistrate’s factual 1 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4
5 Dated: March 7, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6
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