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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 JOHNATHAN SETH HARPER, Case No. 1:21-cv-01364-JLT-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT PLAINTIFF’S v. 13 MOTION FOR INJUNCTIVE RELIEF BE DAVID ROBINSON, et al., DENIED 14 Defendants. (ECF No. 22) 15
16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 18 Plaintiff Johnathan Seth Harper (“Plaintiff”) is a pretrial detainee proceeding pro se and 19 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is 20 Plaintiff’s motion for injunctive relief. (ECF No. 22.) For the reasons set forth below, the Court 21 recommends that Plaintiff’s motion be denied. 22 I. BACKGROUND 23 Plaintiff’s First Motion 24 On September 13, 2021, Plaintiff filed his first motion requesting a temporary 25 restraining order and injunction. (ECF Nos. 3, 12.) Plaintiff’s motion requested various relief, 26 including an order requiring jail officials to reverse their new legal mail policy and return legal 27 papers confiscated during a search. (Id.) The Court entered an order on September 15, 2021, 28 requesting that the Kings County Sheriff’s Office respond to Plaintiff’s motion. (ECF No. 6.) 1 On October 6, 2021, the Kings County Sheriff’s Office filed an opposition to the motion. (ECF 2 No. 8.) Plaintiff filed a reply on October 21, 2021. (ECF No. 9.) 3 On March 16, 2022, the Court entered findings and recommendations recommending 4 that the motion for injunctive relief be denied. (ECF No. 21.) The Court reasoned that no 5 defendant had been served, Plaintiff had not shown a likelihood of success on the merits or that 6 his request was “narrowly drawn,” and Plaintiff failed to establish that he would suffer 7 irreparable harm without preliminary relief. (Id.) On May 2, 2022, District Judge Jennifer L. 8 Thurston entered an order adopting the findings and recommendations in full. (ECF No. 23.) 9 Plaintiff’s Second Motion 10 On April 6, 2022, Plaintiff filed a second motion requesting a temporary restraining 11 order and preliminary injunction. (ECF No. 22.) Plaintiff’s motion requests the following relief:
12 To issue a Temporary Restraining Order to prohibit defendant David Robinson and his deputies, officers, agents, staff, personnel, attorney’s and others in active concert 13 and participation with him from: (1) using physical violence on plaintiff without reasonable necessity 14 (2) opening plaintiff’s ‘legal mail’ after it has been properly processed and sealed 15 for mailing out . . . 16 (3) provide Plaintiff legitimate and usable access to law library (4) provide Plaintiff with legal supplies and services 17 (5) provide Plaintiff with opportunity to shower in accordance to policy of jail for inmates on disciplinary status 18 (6) provide Plaintiff at least 2 hours of out-of-cell exercise time a week after 4 consecutive weeks on disciplinary status on ‘lockdown’ 19 (ECF No. 22 at 1-2.) Plaintiff also requests a preliminary injunction providing the same relief 20 as well as a prohibition on “issuing write-ups to plaintiff on illegitimate basis, or that are 21 otherwise arbitrary, irrational, and pretextual.” (Id. at 2-4.) 22 According to the motion, Plaintiff is “under threat of imminent physical violence.” 23 (ECF No. 22 at 5.) Deputies at the Kings County Jail are opening Plaintiff’s outgoing “legal 24 mail” after it is processed and sealed and are either noting or copying the contents. (Id.) The 25 mail is then put in another envelope, sealed, addressed, and mailed. (Id.) Deputies fail and 26 refuse to process “legal mail” for several days. (Id.) Plaintiff was successful in a Pitchess 27 motion involving Hanford Police Department officers on February 3, 2022. (ECF No. 22 at 5.) 28 1 Beginning February 20, 2022, Kings County Jail deputies “manufactured” situations to justify 2 write-ups in order to “illegitimately punish, abuse, harass, intimidate, and retaliate against 3 Plaintiff for continuing legal activities.” (Id.) As of February 2, 2022, Plaintiff has been unable 4 to obtain legal supplies and has been refused “usable” access to a law library. (Id. at 5-6.) 5 Between February 20, 2022 and March 12, 2022, Plaintiff was subjected to five cell 6 searches, when in the previous two years and two months he had only been subjected to one. 7 (Id. at 6.) Thirty dollars’ worth of property was stolen during a recent cell search, and they 8 ended with Plaintiff’s personal belongings flung around, including into the toilet, and some of 9 the property was stepped on or water damaged. (ECF No. 22 at 6.) “During one cell search, 10 Plaintiff’s legal papers appeared to have been rifled through for information capture[.]” (Id.) 11 On or about March 1, 2022, “Plaintiff was physically attached by being lifted right out of bed 12 and slammed face down into the ground, with no resistance, and from which no possible reason 13 existed for use of force[.]” (Id.) From February 21, 2022 through April 21, 2022, Plaintiff has 14 been locked inside his cell for 24 hours a day except for court or medical visits. (Id.) 15 On the morning of February 24, 2022, a deputy told Plaintiff he had court and 16 “threatened Plaintiff with subjection to physical violence for which he would be made to appear 17 the aggressor and have ‘assault on an officer’ charges referred to the D.A., that he would then 18 be placed in a ‘safety cell,’ and he would return later that evening to an empty cell, with all 19 personal belongings removed, if he tried to go to court that morning.” (ECF No. 22 at 6-7.) 20 Deputies then told the judge that Plaintiff refused court. (Id. at 7.) The Judge ordered a cell 21 extraction to bring Plaintiff to court by force and the deputies allowed Plaintiff to go to court 22 without incident. (Id.) “Plaintiff’s pro per status was revoked by the Judge and Plaintiff was not 23 afforded an opportunity to be heard[.]” (Id.) This case “featured the Sheriff as complainant, in 24 which charges for Plaintiff’s possession of alcoholic beverages were referred to the district 25 attorney for prosecution. This arose from an incident on 7.7.21 in which Sheriff personnel 26 misconduct occurred.” (Id.) 27 On March 12, 2022, “Plaintiff was assaulted by Sheriff deputies and was slammed to 28 the ground, picked up and hit with multiple physical strikes and blows, contorted into severely 1 painful positions, beaten down, dragged, and told to get up and walk out of the cell with them 2 under stated threat of being ‘cracked across the head’ and ‘put in a gurney to the hospital[.]’” 3 (ECF No. 22 at 7.) Additionally, “Plaintiff was refused medical attention after internal injury 4 became apparent.” (Id.) Plaintiff is only allowed to shower every four days or less, despite the 5 written policy of inmates being allowed showers while on disciplinary status every two days 6 and state regulations requiring a minimum of one shower every three days. (Id.) Plaintiff is not 7 given recreational time outside of his cell or in the yard and has no opportunity for exercise. 8 (Id.) 9 II. LEGAL STANDARDS 10 A federal district court may issue emergency injunctive relief only if it has personal 11 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 12 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a 13 party officially, and is required to take action in that capacity, only upon service of summons or 14 other authority-asserting measure stating the time within which the party served must appear to 15 defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., 16 Hitchman Coal & Coke Co. v.
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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 JOHNATHAN SETH HARPER, Case No. 1:21-cv-01364-JLT-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT PLAINTIFF’S v. 13 MOTION FOR INJUNCTIVE RELIEF BE DAVID ROBINSON, et al., DENIED 14 Defendants. (ECF No. 22) 15
16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 18 Plaintiff Johnathan Seth Harper (“Plaintiff”) is a pretrial detainee proceeding pro se and 19 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is 20 Plaintiff’s motion for injunctive relief. (ECF No. 22.) For the reasons set forth below, the Court 21 recommends that Plaintiff’s motion be denied. 22 I. BACKGROUND 23 Plaintiff’s First Motion 24 On September 13, 2021, Plaintiff filed his first motion requesting a temporary 25 restraining order and injunction. (ECF Nos. 3, 12.) Plaintiff’s motion requested various relief, 26 including an order requiring jail officials to reverse their new legal mail policy and return legal 27 papers confiscated during a search. (Id.) The Court entered an order on September 15, 2021, 28 requesting that the Kings County Sheriff’s Office respond to Plaintiff’s motion. (ECF No. 6.) 1 On October 6, 2021, the Kings County Sheriff’s Office filed an opposition to the motion. (ECF 2 No. 8.) Plaintiff filed a reply on October 21, 2021. (ECF No. 9.) 3 On March 16, 2022, the Court entered findings and recommendations recommending 4 that the motion for injunctive relief be denied. (ECF No. 21.) The Court reasoned that no 5 defendant had been served, Plaintiff had not shown a likelihood of success on the merits or that 6 his request was “narrowly drawn,” and Plaintiff failed to establish that he would suffer 7 irreparable harm without preliminary relief. (Id.) On May 2, 2022, District Judge Jennifer L. 8 Thurston entered an order adopting the findings and recommendations in full. (ECF No. 23.) 9 Plaintiff’s Second Motion 10 On April 6, 2022, Plaintiff filed a second motion requesting a temporary restraining 11 order and preliminary injunction. (ECF No. 22.) Plaintiff’s motion requests the following relief:
12 To issue a Temporary Restraining Order to prohibit defendant David Robinson and his deputies, officers, agents, staff, personnel, attorney’s and others in active concert 13 and participation with him from: (1) using physical violence on plaintiff without reasonable necessity 14 (2) opening plaintiff’s ‘legal mail’ after it has been properly processed and sealed 15 for mailing out . . . 16 (3) provide Plaintiff legitimate and usable access to law library (4) provide Plaintiff with legal supplies and services 17 (5) provide Plaintiff with opportunity to shower in accordance to policy of jail for inmates on disciplinary status 18 (6) provide Plaintiff at least 2 hours of out-of-cell exercise time a week after 4 consecutive weeks on disciplinary status on ‘lockdown’ 19 (ECF No. 22 at 1-2.) Plaintiff also requests a preliminary injunction providing the same relief 20 as well as a prohibition on “issuing write-ups to plaintiff on illegitimate basis, or that are 21 otherwise arbitrary, irrational, and pretextual.” (Id. at 2-4.) 22 According to the motion, Plaintiff is “under threat of imminent physical violence.” 23 (ECF No. 22 at 5.) Deputies at the Kings County Jail are opening Plaintiff’s outgoing “legal 24 mail” after it is processed and sealed and are either noting or copying the contents. (Id.) The 25 mail is then put in another envelope, sealed, addressed, and mailed. (Id.) Deputies fail and 26 refuse to process “legal mail” for several days. (Id.) Plaintiff was successful in a Pitchess 27 motion involving Hanford Police Department officers on February 3, 2022. (ECF No. 22 at 5.) 28 1 Beginning February 20, 2022, Kings County Jail deputies “manufactured” situations to justify 2 write-ups in order to “illegitimately punish, abuse, harass, intimidate, and retaliate against 3 Plaintiff for continuing legal activities.” (Id.) As of February 2, 2022, Plaintiff has been unable 4 to obtain legal supplies and has been refused “usable” access to a law library. (Id. at 5-6.) 5 Between February 20, 2022 and March 12, 2022, Plaintiff was subjected to five cell 6 searches, when in the previous two years and two months he had only been subjected to one. 7 (Id. at 6.) Thirty dollars’ worth of property was stolen during a recent cell search, and they 8 ended with Plaintiff’s personal belongings flung around, including into the toilet, and some of 9 the property was stepped on or water damaged. (ECF No. 22 at 6.) “During one cell search, 10 Plaintiff’s legal papers appeared to have been rifled through for information capture[.]” (Id.) 11 On or about March 1, 2022, “Plaintiff was physically attached by being lifted right out of bed 12 and slammed face down into the ground, with no resistance, and from which no possible reason 13 existed for use of force[.]” (Id.) From February 21, 2022 through April 21, 2022, Plaintiff has 14 been locked inside his cell for 24 hours a day except for court or medical visits. (Id.) 15 On the morning of February 24, 2022, a deputy told Plaintiff he had court and 16 “threatened Plaintiff with subjection to physical violence for which he would be made to appear 17 the aggressor and have ‘assault on an officer’ charges referred to the D.A., that he would then 18 be placed in a ‘safety cell,’ and he would return later that evening to an empty cell, with all 19 personal belongings removed, if he tried to go to court that morning.” (ECF No. 22 at 6-7.) 20 Deputies then told the judge that Plaintiff refused court. (Id. at 7.) The Judge ordered a cell 21 extraction to bring Plaintiff to court by force and the deputies allowed Plaintiff to go to court 22 without incident. (Id.) “Plaintiff’s pro per status was revoked by the Judge and Plaintiff was not 23 afforded an opportunity to be heard[.]” (Id.) This case “featured the Sheriff as complainant, in 24 which charges for Plaintiff’s possession of alcoholic beverages were referred to the district 25 attorney for prosecution. This arose from an incident on 7.7.21 in which Sheriff personnel 26 misconduct occurred.” (Id.) 27 On March 12, 2022, “Plaintiff was assaulted by Sheriff deputies and was slammed to 28 the ground, picked up and hit with multiple physical strikes and blows, contorted into severely 1 painful positions, beaten down, dragged, and told to get up and walk out of the cell with them 2 under stated threat of being ‘cracked across the head’ and ‘put in a gurney to the hospital[.]’” 3 (ECF No. 22 at 7.) Additionally, “Plaintiff was refused medical attention after internal injury 4 became apparent.” (Id.) Plaintiff is only allowed to shower every four days or less, despite the 5 written policy of inmates being allowed showers while on disciplinary status every two days 6 and state regulations requiring a minimum of one shower every three days. (Id.) Plaintiff is not 7 given recreational time outside of his cell or in the yard and has no opportunity for exercise. 8 (Id.) 9 II. LEGAL STANDARDS 10 A federal district court may issue emergency injunctive relief only if it has personal 11 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 12 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a 13 party officially, and is required to take action in that capacity, only upon service of summons or 14 other authority-asserting measure stating the time within which the party served must appear to 15 defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., 16 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 17 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) 18 (injunctive relief must be “narrowly tailored to give only the relief to which plaintiffs are 19 entitled”). Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the 20 parties to the action,” their “officers, agents, servants, employees, and attorneys,” and “other 21 persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). 22 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the 23 Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is 24 25 narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, 26 and is the least intrusive means necessary to correct the violation of the Federal Right.” 27 On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is 28 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 1 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 2 public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural 3 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that 4 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” 5 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 6 III. ANALYSIS 7 The Court will recommend that Plaintiff’s motion be denied. 8 First, as the Court explained to Plaintiff in the findings and recommendations 9 recommending that his first motion for injunctive relief was denied, it cannot order an 10 injunction until after the party at whom the injunction is directed has been served. See Zepeda, 11 753 F.2d at 727 (“A federal court may issue an injunction if it has personal jurisdiction over the 12 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights 13 of persons not before the court.”); S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir. 2007) (“[I]n 14 order for the court to assert personal jurisdiction over a party-in-interest, the party must be 15 properly served.”). Because no defendant has been served yet, the Court cannot issue an 16 17 injunction at this time. 18 Second, Plaintiff has not shown a likelihood of success on the merits or the existence of 19 serious questions going to the merits and the balance of hardships tipping in Plaintiff’s favor. 20 See Nike, Inc., 379 F.3d at 580. Plaintiff’s declaration in support of the motion is conclusory 21 and merely restates the arguments in the motion. Plaintiff does not submit any declarations, 22 witness statements, or other evidence suggesting that the defendants in this case violated his 23 Sixth Amendment right to prepare and present a meaningful defense in Plaintiff’s criminal 24 cases, infringed on his Fourteenth Amendment due process rights, or retaliated against him in 25 violation of the First Amendment as alleged in the First Amended Complaint.1 26 27 1 The Court notes that this case is still at the screening stage. On May 27, 2022, the Court entered a screening order finding that the First Amended Complaint fails to state any cognizable claims. (ECF No. 26.) Plaintiff was granted 28 thirty days to either file a Second Amended Complaint or notify the Court that he wants to stand on his First Amended Complaint. (Id.) 1 Third, Plaintiff has not established that he would suffer irreparable harm without 2 preliminary relief. Although Plaintiff concludes that his ability to prepare a defense would be 3 harmed and the defendants will unlawfully punish him and retaliate against him, these 4 arguments are conclusory and speculative. See Perez v. Diaz, 2019 WL 3229622, at *3 (E.D. 5 Cal. July 18, 2019), report and recommendation adopted, 2019 WL 3986657 (E.D. Cal. Aug. 6 22, 2019) (“Generalized allegations of past incidents . . . fail to show that plaintiff . . . faces 7 imminent harm.”). 8 Fourth, Plaintiff has not shown that his request “is narrowly drawn, extends no further 9 than necessary to correct the violation of the Federal Right, and is the least intrusive means 10 necessary to correct the violation of the Federal Right.” See 18 U.S.C. § 3626(a)(1)(A). Much 11 of the relief Plaintiff requests in his motion is extremely broad and vague, and it is not clear 12 how, if at all, it is related to the allegations in the complaint. See Pac. Radiation Oncology, 810 13 F.3d at 633 (“When a plaintiff seeks injunctive relief based on claims not pled in the complaint, 14 the court does not have the authority to issue an injunction.”).2 15 16 Therefore, the Court will recommend that the motion be denied. 17 IV. CONCLUSION AND RECOMMENDATIONS 18 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s 19 motion for injunctive relief (ECF No. 22) be denied. 20 These findings and recommendations will be submitted to the United States district 21 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 22 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 23 file written objections with the Court. The document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 25 26 2 The Court notes that, among other things, the motion contends that Plaintiff does not have “usable” access to the law library. Plaintiff does not provide any further detail in support of this conclusion and it is unclear what 27 Plaintiff intends by his use of the word “usable.” However, if Plaintiff is unable to comply with any court deadlines because he needs more time to access the law library or to obtain supplies, Plaintiff may request an 28 extension supported by good cause or other appropriate relief. Any such request should describe Plaintiff’s requests for law library access and any response received from the institution. 1 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 || (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 || Dated: _Jume 1, 2022 [see hey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28