1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, Case No. 1:21cv01372-JLT-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S SECOND AND THIRD 13 v. MOTIONS FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY 14 E. MUNOZ, ET. AL., INJUNCTION
15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. Nos. 15, 16) 17 18 On February 22, 2022, Plaintiff simultaneously filed a second and third motion for a 19 temporary restraining order and a motion for a preliminary injunction seeking to enjoin 20 Defendants from transferring Plaintiff out of “long term restricted housing” or from transferring 21 him to another institution. (Doc. Nos. 15 at 2; 16 at 2 collectively “the Motions”). In the Motions 22 Plaintiff refers to and incorporates by reference the allegations set forth in his First Amended 23 Complaint. (Doc. No. 14, “FAC”). Plaintiff includes a memorandum and his own declaration in 24 support. (Doc. Nos. 17, 18). For the reasons discussed below, the undersigned recommends 25 denying the Motions. 26 I. BACKGROUND AND FACTS 27 A. Prior Motion TRO/PI 28 Plaintiff initiated this action proceeding pro se by filing a prisoner civil rights complaint 1 under 42 U.S.C. § 1983 on September 14, 2021. (Doc. No. 1). He accompanied the filing of his 2 complaint with a motion for a temporary restraining order or a preliminary injunction (“TRO/PI 3 motion”). (Doc. No. 2). Plaintiff paid the filing fee to proceed in this action. (Receipt No. 4 CAE1000049286). Plaintiff is proceeding on his First Amended Complaint filed February 22, 5 2022, which remains subject to screening. (Doc. No. 14). 6 Previously Plaintiff filed a motion for a TRO/PI requesting the Court enter an order 7 enjoining Defendants Munoz and Cerda from various acts including, but not limited to, searching 8 Plaintiff’s cell in retaliation, selectively enforcing contraband rules against Plaintiff, and 9 disposing of Plaintiff’s legal material. (Doc. No. 7 at 3-4). On December 8, 2021, the 10 undersigned issued a findings and recommendations recommending the district court deny 11 Plaintiff’s prior TRO/PI motion. (Doc. Nos. 7, 12). In denying Plaintiff’s TRO/PI motion, the 12 undersigned determined that Plaintiff did not sufficiently allege risk of imminent harm. (Id. at 6). 13 The undersigned further noted that Plaintiff primarily took issue with the correctional officers 14 enforcing the institution’s rules whereas Plaintiff was previously afforded leniency. (Id.). The 15 district court adopted the findings and recommendations in full. (Doc. No. 12). 16 B. The FAC 17 Since the ruling on Plaintiff’s first motion for a temporary restraining order or preliminary 18 injunction, Plaintiff filed a FAC. (Doc. No. 14). Similar to the initial Complaint, the FAC 19 identifies E. Munoz and J. Cerda as Defendants but adds four more Defendants: E. Silva, 20 identified as the assistant warden; J. Pederson, identified as a correctional captain; K. Matta, 21 identified as a correctional counselor; and, M. Medina, identified as a correctional officer. (Doc. 22 No. 14 at 1, 3- 4). 23 In large part, the FAC contains similar allegations to the initial Complaint involving 24 Munoz and Cerda with the theme of retaliation woven throughout. (See generally Doc. No. 14 at 25 5-11; see also Doc. No. 7 at 1-3). However, unlike the initial Complaint, the FAC clarifies 26 Plaintiff’s Prison Rape Elimination Act (“PREA”) allegations, adds additional incidents of 27 alleged retaliation, an unrelated claim of not being provided a lunch consistent with Plaintiff’s 28 religious diet and the throwing of a tray at him, and a claim related to Plaintiff’s need to be 1 housed in segregated confinement due to other prisoner’s dislike of prisoners charged with 2 indecent exposure. (Doc. No. 14 at 12-28). 3 Plaintiff states PREA requires female correctional officials or staff to announce when they 4 enter a housing unit of all males, or vice versa if the housing unit consists of women. (Id. at 12). 5 Plaintiff states M. Casares, a female, licensed social worker, did not announce her presence in the 6 male dorm and had an opportunity to view Plaintiff showering. (Id.). Plaintiff alleges Casares, 7 who is not a named Defendant, used the PREA violation to “launch an allegation of indecent 8 exposure against Plaintiff.” (Id. at 13). Following Casares’ indecent exposure allegation against 9 Plaintiff, Munoz began retaliatory searches of Plaintiff’s cell and strict enforcement of the 10 contraband rules, including removal of Plaintiff’s personal property, such as his television and 11 books. (Id. at 13-16). Plaintiff claims Defendants Cerda and Munoz kept his television an extra 12 two months despite him being eligible for its return on or about September 9, 2021. (Id. at 17). 13 Plaintiff also cites to another unrelated incident of retaliation involving the rejection of a 14 package he ordered from Walkenhorst for which he had paid expedited shipping. (Id. at 18-20). 15 Plaintiff states he was provided an “access package” while Defendant Medina denied receiving 16 the Walkenhorst package only to later deliver it to Plaintiff after the thirty-day return period had 17 expired. (Id. at 20-21). 18 Finally, Plaintiff alleges that due to his indecent exposure charge, he is threatened by 19 some inmates in general population. (Id. at 24-25). When he “senses this antagonism towards 20 [him] from elements of the prison population, [he] intend[s] to employ violence, rather than the 21 foolhardy [sic] proposition of informing staff with hopes that they will protect him.” (Id. at 25). 22 He alleges Defendants threatened him with placement in “short term restricted housing” if he had 23 any more RVR’s while in segregation. (Id. at 25). Plaintiff alleges Defendants know he 24 “decompensates” in a short-term restricted housing cell and previously attempted suicide in such 25 a cell. (Id.). 26 C. Instant TRO/PI Motions, Memorandum, and Declaration 27 Plaintiff’s TRO/PI motions, consisting of 3 and 6 pages respectively, seek an order 28 enjoining correctional officials from transferring him from California State Prison, Corcoran, 1 long-term restricted housing. (Doc. Nos. 15 at 2; 16 at 2). Plaintiff also seeks an order enjoining 2 correctional officials from transferring him to another prison. (Id.). 3 In his supporting memorandum, Plaintiff states he is considered a sex offender based on 4 his prior indecent exposure convictions and faces risk of attack in prison if he is transferred to 5 general population or short-term restricted housing. (Doc. No. 17 at 2-3). In the supporting 6 declaration, Plaintiff states he has been referred to a general population at CSP- Sacramento or 7 Kern Valley State Prison. (Doc. No. 18 at 5). Plaintiff claims he does not understand how a 8 transfer order was accomplished because he has another pending RVR. (Id.). Plaintiff claims he 9 faces a risk of irreparable harm to his personal safety and has not prospects for his release if he is 10 transferred. (Id.). 11 II. APPLICABLE LAW 12 Federal Rule of Civil Procedure 65 governs injunctions and restraining orders, and 13 requires that a motion for temporary restraining order include “specific facts in an affidavit or a 14 verified complaint [that] clearly show that immediate, and irreparable injury, loss, or damage will 15 result to the movant before the adverse party can be heard in opposition,” as well as written 16 certification from the movant’s attorney stating “any efforts made to give notice and the reasons 17 why it should not be required.” Fed. R. Civ. P. 65(b).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, Case No. 1:21cv01372-JLT-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S SECOND AND THIRD 13 v. MOTIONS FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY 14 E. MUNOZ, ET. AL., INJUNCTION
15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. Nos. 15, 16) 17 18 On February 22, 2022, Plaintiff simultaneously filed a second and third motion for a 19 temporary restraining order and a motion for a preliminary injunction seeking to enjoin 20 Defendants from transferring Plaintiff out of “long term restricted housing” or from transferring 21 him to another institution. (Doc. Nos. 15 at 2; 16 at 2 collectively “the Motions”). In the Motions 22 Plaintiff refers to and incorporates by reference the allegations set forth in his First Amended 23 Complaint. (Doc. No. 14, “FAC”). Plaintiff includes a memorandum and his own declaration in 24 support. (Doc. Nos. 17, 18). For the reasons discussed below, the undersigned recommends 25 denying the Motions. 26 I. BACKGROUND AND FACTS 27 A. Prior Motion TRO/PI 28 Plaintiff initiated this action proceeding pro se by filing a prisoner civil rights complaint 1 under 42 U.S.C. § 1983 on September 14, 2021. (Doc. No. 1). He accompanied the filing of his 2 complaint with a motion for a temporary restraining order or a preliminary injunction (“TRO/PI 3 motion”). (Doc. No. 2). Plaintiff paid the filing fee to proceed in this action. (Receipt No. 4 CAE1000049286). Plaintiff is proceeding on his First Amended Complaint filed February 22, 5 2022, which remains subject to screening. (Doc. No. 14). 6 Previously Plaintiff filed a motion for a TRO/PI requesting the Court enter an order 7 enjoining Defendants Munoz and Cerda from various acts including, but not limited to, searching 8 Plaintiff’s cell in retaliation, selectively enforcing contraband rules against Plaintiff, and 9 disposing of Plaintiff’s legal material. (Doc. No. 7 at 3-4). On December 8, 2021, the 10 undersigned issued a findings and recommendations recommending the district court deny 11 Plaintiff’s prior TRO/PI motion. (Doc. Nos. 7, 12). In denying Plaintiff’s TRO/PI motion, the 12 undersigned determined that Plaintiff did not sufficiently allege risk of imminent harm. (Id. at 6). 13 The undersigned further noted that Plaintiff primarily took issue with the correctional officers 14 enforcing the institution’s rules whereas Plaintiff was previously afforded leniency. (Id.). The 15 district court adopted the findings and recommendations in full. (Doc. No. 12). 16 B. The FAC 17 Since the ruling on Plaintiff’s first motion for a temporary restraining order or preliminary 18 injunction, Plaintiff filed a FAC. (Doc. No. 14). Similar to the initial Complaint, the FAC 19 identifies E. Munoz and J. Cerda as Defendants but adds four more Defendants: E. Silva, 20 identified as the assistant warden; J. Pederson, identified as a correctional captain; K. Matta, 21 identified as a correctional counselor; and, M. Medina, identified as a correctional officer. (Doc. 22 No. 14 at 1, 3- 4). 23 In large part, the FAC contains similar allegations to the initial Complaint involving 24 Munoz and Cerda with the theme of retaliation woven throughout. (See generally Doc. No. 14 at 25 5-11; see also Doc. No. 7 at 1-3). However, unlike the initial Complaint, the FAC clarifies 26 Plaintiff’s Prison Rape Elimination Act (“PREA”) allegations, adds additional incidents of 27 alleged retaliation, an unrelated claim of not being provided a lunch consistent with Plaintiff’s 28 religious diet and the throwing of a tray at him, and a claim related to Plaintiff’s need to be 1 housed in segregated confinement due to other prisoner’s dislike of prisoners charged with 2 indecent exposure. (Doc. No. 14 at 12-28). 3 Plaintiff states PREA requires female correctional officials or staff to announce when they 4 enter a housing unit of all males, or vice versa if the housing unit consists of women. (Id. at 12). 5 Plaintiff states M. Casares, a female, licensed social worker, did not announce her presence in the 6 male dorm and had an opportunity to view Plaintiff showering. (Id.). Plaintiff alleges Casares, 7 who is not a named Defendant, used the PREA violation to “launch an allegation of indecent 8 exposure against Plaintiff.” (Id. at 13). Following Casares’ indecent exposure allegation against 9 Plaintiff, Munoz began retaliatory searches of Plaintiff’s cell and strict enforcement of the 10 contraband rules, including removal of Plaintiff’s personal property, such as his television and 11 books. (Id. at 13-16). Plaintiff claims Defendants Cerda and Munoz kept his television an extra 12 two months despite him being eligible for its return on or about September 9, 2021. (Id. at 17). 13 Plaintiff also cites to another unrelated incident of retaliation involving the rejection of a 14 package he ordered from Walkenhorst for which he had paid expedited shipping. (Id. at 18-20). 15 Plaintiff states he was provided an “access package” while Defendant Medina denied receiving 16 the Walkenhorst package only to later deliver it to Plaintiff after the thirty-day return period had 17 expired. (Id. at 20-21). 18 Finally, Plaintiff alleges that due to his indecent exposure charge, he is threatened by 19 some inmates in general population. (Id. at 24-25). When he “senses this antagonism towards 20 [him] from elements of the prison population, [he] intend[s] to employ violence, rather than the 21 foolhardy [sic] proposition of informing staff with hopes that they will protect him.” (Id. at 25). 22 He alleges Defendants threatened him with placement in “short term restricted housing” if he had 23 any more RVR’s while in segregation. (Id. at 25). Plaintiff alleges Defendants know he 24 “decompensates” in a short-term restricted housing cell and previously attempted suicide in such 25 a cell. (Id.). 26 C. Instant TRO/PI Motions, Memorandum, and Declaration 27 Plaintiff’s TRO/PI motions, consisting of 3 and 6 pages respectively, seek an order 28 enjoining correctional officials from transferring him from California State Prison, Corcoran, 1 long-term restricted housing. (Doc. Nos. 15 at 2; 16 at 2). Plaintiff also seeks an order enjoining 2 correctional officials from transferring him to another prison. (Id.). 3 In his supporting memorandum, Plaintiff states he is considered a sex offender based on 4 his prior indecent exposure convictions and faces risk of attack in prison if he is transferred to 5 general population or short-term restricted housing. (Doc. No. 17 at 2-3). In the supporting 6 declaration, Plaintiff states he has been referred to a general population at CSP- Sacramento or 7 Kern Valley State Prison. (Doc. No. 18 at 5). Plaintiff claims he does not understand how a 8 transfer order was accomplished because he has another pending RVR. (Id.). Plaintiff claims he 9 faces a risk of irreparable harm to his personal safety and has not prospects for his release if he is 10 transferred. (Id.). 11 II. APPLICABLE LAW 12 Federal Rule of Civil Procedure 65 governs injunctions and restraining orders, and 13 requires that a motion for temporary restraining order include “specific facts in an affidavit or a 14 verified complaint [that] clearly show that immediate, and irreparable injury, loss, or damage will 15 result to the movant before the adverse party can be heard in opposition,” as well as written 16 certification from the movant’s attorney stating “any efforts made to give notice and the reasons 17 why it should not be required.” Fed. R. Civ. P. 65(b). 18 Temporary restraining orders are governed by the same standard applicable to preliminary 19 injunctions, with the exception that preliminary injunctions require notice to the adverse party. 20 See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 21 (E.D. Ca. 2001); see also Fed. R. Civ. P. 65(a). Eastern District of California Local Rule 231, 22 however, requires notice for temporary restraining orders as well, “[e]xcept in the most 23 extraordinary of circumstances,” and the court considers whether the applicant could have sought 24 relief by motion for preliminary injunction at an earlier date. Local Rule 231(a)-(b) (E.D. Cal. 25 2019). A temporary restraining order “should be restricted to serving [its] underlying purpose of 26 preserving the status quo and preventing irreparable harm just so long as is necessary to hold a 27 hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers 28 Local No. 70, 415 U.S. 423, 439 (1974). 1 A temporary restraining order is “an extraordinary remedy” and may be issued only if 2 Plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in 3 the absence of preliminary relief; (3) that the balance of equities tips in his/her favor; (4) that an 4 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 5 Plaintiff bears the burden of clearly satisfying all four prongs. Alliance for the Wild Rockies v. 6 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). A TRO will not issue if Plaintiff merely shows 7 irreparable harm is possible – a showing of likelihood is required. Id. at 1131. The Ninth Circuit 8 also has a second test, holding that a party requesting relief is entitled to a preliminary injunction 9 if it demonstrates: (1) a combination of probable success on the merits and the possibility of 10 irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply 11 in its favor. Zepeda v. U.S. Immigr. & Naturalization Serv, 753 F.2d 719, 727 (9th Cir. 1985); 12 see also McKinney v. Hill, 925 F.2d at 1470 (9th Cir. 1991)(noting same). 13 The injunctive relief an applicant requests must relate to the claims brought in the 14 complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 15 2015) (“When a Plaintiff seeks injunctive relief based on claims not pled in the complaint, the 16 court does not have the authority to issue an injunction.”). Absent a nexus between the injury 17 claimed in the motion and the underlying complaint, the court lacks the authority to grant Plaintiff 18 any relief. Id. at 636. 19 The Prison Litigation Reform Act (“PLRA”) imposes additional requirements on prisoner 20 litigants seeking preliminary injunctive relief against prison officials. In such cases, 21 “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to 22 correct the harm the court finds requires preliminary relief, and be the least intrusive means 23 necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); Villery v. California Dep't of Corr., 24 2016 WL 70326, at *3 (E.D. Cal. Jan. 6, 2016). As the Ninth Circuit has observed, the PLRA 25 places significant limits upon a court’s power to grant preliminary injunctive relief to inmates, 26 and “operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the 27 bargaining power of prison administrators—no longer may courts grant or approve relief that 28 binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of 1 the State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). The court’s jurisdiction is “limited 2 to the parties in this action” and the pendency of an action “does not give the Court jurisdiction 3 over prison officials in general or over the conditions of an inmate's confinement unrelated to the 4 claims before it.” Beaton v. Miller, 2020 WL 5847014, at *1 (E.D. Cal. Oct. 1, 2020). Further, 5 state governments have “traditionally been granted the widest latitude in the dispatch of [their] 6 own internal affairs.” Rizzo v. Goode, 423, U.S. 362, 378 (1976) (citations omitted). This 7 deference applies even more strongly when the court is asked to involve itself in the 8 administrative decisions of a prison. See Turner v. Safely, 482 U.S. 78, 85 (1987); Sandin v. 9 Conner, 515 U.S. 472, 482-83 (1995). 10 Based on the foregoing, the undersigned finds the motion facially deficient and otherwise 11 lacks merit to warrant issuance of injunctive relief. 12 III. DISCUSSION 13 At the outset, Plaintiff does not certify in writing the efforts, if any, which he made to give 14 notice and reasons supporting why notice should not be required. Fed. R. Civ. P. 65(b). Nor does 15 Plaintiff address any of the four factors necessary to warrant an issuance of a TRO. Thus, 16 facially, the motion is deficient. 17 Nonetheless, in applying the four factors, significant here is Plaintiff’s unlikelihood of 18 success on the merits and in ability to show that he is likely to suffer irreparable harm. Like the 19 initial complaint, the FAC alleges many seemingly unrelated claims, which Plaintiff links 20 together through general claims of retaliation. Plaintiff seeks a temporary restraining order or a 21 preliminary injunction to enjoin defendants from either removing his current long-term restricted 22 housing status, or from transferring him out of California State Prison Corcoran to any other 23 correctional facility. Plaintiff says he is at risk if placed in general population due to his sexual 24 predator status stemming from his indecent exposure convictions in 2019. 25 The transfer of a prisoner due to his protected activity can violate a prisoner’s First 26 Amendment rights. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). And filing a lawsuit 27 may constitute protected activity. See Thibodeaux v. Belleque, 320 F. App’x 818, 818-19 (9th 28 Cir. 2009) (determining that retaliation due to a prisoner’s threats of bringing lawsuits could 1 create a colorable First Amendment retaliation claim). Here, however, Plaintiff does not allege, 2 yet alone establish, that his transfer or failure to transfer is “because of” protected activity. 3 Further, as a general rule, prisoners have no expectation they will remain in any particular facility 4 during their confinement and prison officials have broad authority to transfer prisoners from one 5 facility to another. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983) (holding prisoners 6 maintain no expectation that they will be confined in any particular prison); see also Meachum v. 7 Fano, 427 U.S. 215, 225 (1976) (holding prisoners have no expectation that they will be confined 8 in any particular facility). 9 As to the imminent harm prong, Plaintiff has not shown he is likely to suffer irreparable 10 harm to warrant the extraordinary exercise of immediate injunctive relief to enjoin Plaintiff’s 11 transfer. Although Plaintiff believes he is subject to transfer and may face injury based on his 12 prior conviction of indecent exposure, “‘[s]peculative injury does not constitute irreparable injury 13 sufficient to warrant granting a preliminary injunction.’” Mester v. Dickinson, 2010 WL 14 1658472, *2 (April 23, 2010) (citing Caribbean Marine Servc. Co. v. Baldrige, 844 F.2d 668, 674 15 (9th Cir. 1988) (other citations omitted)). A presently existing actual threat must be shown. Id. 16 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 (1969); FDIC v. 17 Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997), cert. denied, 523 U.S. 1020 (1998); Caribbean 18 Marine, 844 F.2d at 674). And Plaintiff presents no evidence that transfer to another correctional 19 institution or status change from long-term restricting housing is imminent. Other courts facing 20 similar requests for injunctive relief to prevent correctional officials from transferring an inmate 21 have recommended denying the motion for similar reasons. See Blair v. CDCR, 2016 WL 22 8673037 *2 (E.D. Cal. Dec. 9, 2016) (finding injuries speculative among other reasons); James v. 23 Wong, 2017 WL 3588027 *3 (E.D. Cal. Sept. 21, 2017); Jones v. Wong, 2017 WL 3588027 (E.D. 24 Cal. Aug. 21, 2017) (finding risk of future transfer too speculative to warrant injunctive relief). 25 Accordingly, it is ORDERED: 26 1. The Clerk of Court shall correct the docket to reflect the names of the Defendants 27 identified on Plaintiff’s First Amended Complaint to include: E. Munoz, J. Cerda, E. Silva, J. 28 Pederson, K. Matta, and M. Medina. 1 It is further RECOMMENDED: 2 Plaintiff's motions for a temporary restraining order or preliminary injunction (Doc. No. 3 | 15, 16) be DENIED. 4 NOTICE TO PARTIES 5 These findings and recommendations will be submitted to the United States District Judge 6 | assigned to the case under the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 7 | after being served with these findings and recommendations, a party may file written objections 8 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 9 | and Recommendations.” Parties are advised that failure to file objections within the specified 10 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 11 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 Dated: __April 13,2022 Mile. Wh fareh Base 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
16 17 18 19 20 21 22 23 24 25 26 27 28