(PC) Wilson v. Sherman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, Case No.: 1:22-cv-00874 JLT SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. PROTECTION ORDER

14 STUART SHERMAN, et al., (Doc. 20)

15 Defendants. 16

17 Plaintiff David W. Wilson is appearing pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On March 3, 2023, Plaintiff filed “Plaintiff’s Motion for Protection Order Fed.R.Civ.P. 21 26(c); L.R. 37-251(a).” (Doc. 20.) Plaintiff seeks a “PROTECTION ORDER for all Legal 22 Documents, and for Single Cell, for imminent danger Transfer where conspiracy was undertaken 23 to place plaintiff as Enhanced Out Patient (EOP) by Psychologist ….” (Id. at 1.) 24 Plaintiff contends that on February 8, 2023, he was called in to see a psychologist but 25 refused to do so. (Doc. 20 at 2.) On February 14, 2023, Plaintiff again refused to see the 26 psychologist, stating “95% Mexican/Hispanic Staff, and bias discrimination and unequal 27 treatment for Blacks.” (Id.) On February 15, 2023, when called to the mental health clinic, 1 Easedropping [sic], Dr., Clergy, Attorney, & Civil Code 5623(b) No waiver for Third Party 2 Intervenor ….” (Id.) Plaintiff also asserted “RACIAL BIAS B-Facility Mexican/Hispanic White 3 Supremacy” for his refusal. (Id.) On February 22, 2023, Plaintiff states he was taken to an “Inter 4 Disciplinary Treatment Team (IDTT) Mental Committee” involving the psychologist, 5 psychiatrist, medical assistant and a correctional counselor. (Id.) Plaintiff states he explained to 6 the correctional counselor her actions were “in retaliation CCR Title 15, 3084.1(d) for prior 7 STAFF COMPLAINT against her for denial of Due Process for Classification Chrono FALSE & 8 Other Staff, and this was a Conspiracy for ‘All’ Mexican Staff.” (Id.) Plaintiff states he “left 9 without any threats to others or myself.” (Id.) On February 23, 2023, another correctional 10 counselor called Plaintiff to the office and advised Plaintiff he was “EOP mental and [was] being 11 transferred.” (Id.) Plaintiff states he filed a staff complaint against Psychologist Availa and 12 Correctional Counselor M. Gonzales on February 26, 2023. (Id.) 13 Plaintiff requests “ALL personal & medical property transferred with him & Single Cell 14 as described in Civil Complaint for Protection Order … for manufactured staff concocted risk.” 15 (Doc. 20 at 2-3.) Appended as exhibits to Plaintiff’s motion are a Health Care Grievance dated 16 February 26, 2023 (id. at 5-6), excerpts of the California Business and Professions Code (id. at 7- 17 9), a Duty Statement for a Clinical Psychologist, position number 394-220-9283-VAR, at Pelican 18 Bay State Prison (id. at 10-13), an inmate grievance dated May 25, 2020, log number SATF-B 19 20-3307 (id. at 14-17), a July 8, 2020, Second Level Response to SATF-B-20-03307 (id. at 18- 20 20), a September 15, 2021, Third Level Decision from the Office of Appeals concerning SATF- 21 B-20-03307 (id. at 21), and copies of excerpts from an unidentified source, commencing with 22 “Chapter 3 – Personnel, Training and Employee Relations, Article 22 – Employee Discipline” (id. 23 at 22-28). 24 II. DISCUSSION 25 The Court construes Plaintiff’s instant motion to seek temporary and/or permanent 26 injunctive relief.1 27

1 Plaintiff’s citation to Rule 26(c) of the Federal Rules of Civil Procedure is not applicable. Rule 26 1 Applicable Legal Standards 2 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 2 Winter 3 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 4 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 5 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 6 favor, and that an injunction is in the public interest.” Id. at 20. 7 In addition, a “federal court may issue an injunction [only] if it has personal jurisdiction 8 over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the 9 rights of persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). 10 “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ 11 . . . and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all 12 possible breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) 13 (quoting Zepeda, 753 F.2d at 727, 728 n.1). 14 The pendency of this action does not give the Court jurisdiction over prison officials in 15 general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 16 599 F.3d 964, 969 (9th Cir. 2010). The Court's jurisdiction is limited to the parties in this action 17 and to the viable legal claims upon which this action is proceeding. Summers, 555 U.S. at 491-93; 18 Mayfield, 599 F.3d at 969. 19 A “federal court may issue an injunction [only] if it has personal jurisdiction over the 20 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 21 persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). “[A]n 22 injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ . . . 23 and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible 24 breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting 25 Zepeda, 753 F.2d at 727, 728 n.1). 26

27 2 “The standard for a [temporary restraining order] is the same as for a preliminary injunction.” Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1092 (N.D. Cal. 2012) (citing Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (citation omitted). 1 Analysis 2 The Court initially notes that it lacks personal jurisdiction over the parties to Plaintiff’s 3 suit or any other prison staff because no defendant has made an appearance in this action; 4 therefore, injunctive relief is inappropriate. See Murphy Bros., Inc. v. Michetti Pipe Stringing, 5 Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party officially, and is required to take 6 action in that capacity, only upon service of summons or other authority-asserting measure stating 7 the time within which the party served must appear to defend”); Zepeda, 753 F.2d at 727. 8 Considering the Winter factors, first, Plaintiff has not established he is likely to succeed 9 on the merits of his claims. Winter, 555 U.S. at 20. In deciding whether a preliminary injunction 10 should issue, the likelihood of success on the merits is the most important factor for the court to 11 consider. Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017). Plaintiff’s 12 first amended complaint has not yet been screened as required by 28 U.S.C. § 1915A(a). 13 Therefore, the Court has not yet determined whether Plaintiff has stated a claim upon which relief 14 can be granted. This Court is one of the busiest district courts in the nation and carries a heavy 15 prisoner civil rights caseload. Plaintiff’s complaint will be screened in due course. Further, a 16 likelihood of success on the merits determination is not the same as that required at screening; at 17 screening, the Court determines whether a plaintiff has sufficiently and plausibly alleged a cause 18 of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested at the 19 screening stage because the Court is to consider factual allegations to be true for purposes of 20 screening. Simply put, it is too early to determine whether Plaintiff is likely to succeed on the 21 merits of his claims. 22 Second, Plaintiff must demonstrate he is likely to suffer irreparable harm in the absence of 23 preliminary relief. Winter, 555 U.S. at 20. Plaintiff’s motion only vaguely infers irreparable harm, 24 claiming “imminent danger” in the form of a transfer following an EOP designation. But this is 25 insufficient to demonstrate Plaintiff is likely to suffer irreparable harm. His claims are speculative 26 and without evidentiary support. Plaintiff alleges a conspiracy and racial bias, but nothing in the 27 documentation provided supports his argument. City of Los Angeles v. Lyons, 461 U.S. 95, 111 1 requirement that cannot be met where there is no showing of any real or immediate threat that the 2 plaintiff will be wronged again—a likelihood of substantial and immediate irreparable injury,” 3 internal quotation marks & citation omitted). While Plaintiff contends he will be transferred as an 4 EOP inmate, it appears transfer is only a possibility, and a possibility of irreparable harm does not 5 warrant injunctive relief. Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on 6 a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an 7 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 8 to such relief”); Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) 9 (“Speculative injury does not constitute irreparable injury sufficient to warrant granting a 10 preliminary injunction,” citation omitted); see also Chappell v. Stankorb, No. 1:11-CV-01425- 11 LJO, 2012 WL 1413889, at *2 (E.D. Cal. Apr. 23, 2012) (denying injunctive relief where 12 prisoner's claims of injury based on current or future housing decisions were nothing “more than 13 speculative”), report and recommendation adopted, No. 1:11-CV-01425-LJO, 2012 WL 2839816 14 (E.D. Cal. July 9, 2012). 15 Plaintiff’s complaint involves prison officials or staff at the California Substance Abuse 16 Treatment Facility and Plaintiff remains housed there.3 The irreparable harm that is the subject of 17 Plaintiff’s instant motion—an EOP designation that may result in a transfer—is unrelated to the 18 subject of Plaintiff’s first amended complaint. A brief review the first amended complaint reveals 19 it concerns conditions of confinement claims involving ventilation issues and allegations of black 20 mold. See De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (holding that a 21 preliminary injunction cannot address “a matter lying wholly outside the issues in the suit”); Pac. 22 Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (“When a 23 plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have 24 the authority to issue an injunction”).

25 3 As of April 26, 2023, Plaintiff remains incarcerated at the California Substance Abuse Treatment 26 Facility. See https://inmatelocator.cdcr.ca.gov/Details.aspx?ID=K66474. The Court may take judicial notice of public information stored on the CDCR inmate locator website. See In re Yahoo Mail Litig., 7 27 F.Supp.3d 1016, 1024 (N.D. Cal. 2014) (court may take judicial notice of information on “publicly accessible websites” not subject to reasonable dispute); Louis v. McCormick & Schmick Restaurant Corp., 460 F.Supp.2d 1153, 1155 fn.4 (C.D. Cal. 2006) (court may take judicial notice of state agency records). 1 Finally, Plaintiff is required to show the balance of equities tips in his favor and that the 2 injunction he seeks is in the public interest. Winter, 555 U.S. at 20. Plaintiff has not presented any 3 evidence that the balance of equities is in his favor, or that preliminary injunctive relief would be 4 in the public's interest. 5 III. CONCLUSION AND RECOMMENDATIONS 6 For the reasons set forth above, the undersigned RECOMMENDS Plaintiff’s “Motion for 7 Protection Order” (Doc. 20) be DENIED. 8 These Findings and Recommendations will be submitted to the district judge assigned to 9 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 10 Findings and Recommendations, a party may file written objections with the Court. The 11 document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Failure to file objections within the specified time may result in waiver of 13 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16

17 Dated: April 28, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18

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