(PC) Diaz v. Hurley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ENRIQUE DIAZ, No. 2:19-cv-1241 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ASSOCIATE WARDEN HURLEY, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se. On July 3, 2019, this action was opened 19 pursuant to the undersigned’s finding that plaintiff’s motion for temporary restraining order and 20 for preliminary injunction was more appropriately filed in a new action. (ECF No. 2.) Plaintiff 21 has been granted multiple extensions of time in which to file a complaint, which is required to 22 commence a civil rights action. Fed. R. Civ. P. 3. Plaintiff’s last deadline expired on February 23 10, 2020, and no complaint has been filed.1 As discussed below, the undersigned recommends 24 that plaintiff’s motions for preliminary injunctive relief and for contempt be denied without 25 prejudice. 26 1 On February 18, 2020, the court received plaintiff’s declaration that he would be submitting his 27 complaint and request to proceed in forma pauperis to prison officials for mailing to the court on February 21, 2020. (ECF No. 18.) Plaintiff’s complaint, if filed, will be addressed by separate 28 order. 1 II. Plaintiff’s Motions 2 Plaintiff, who is prescribed psychotropic medications, alleges that since May of 2019, and 3 specifically on June 12, 2019, he has been denied ice on days where the temperature exceeds 90 4 degrees, as required under Coleman v. Newsom, No. 2:90-cv-0520 KJM DB (E.D. Cal.), in 5 retaliation for plaintiff’s litigation activity. (ECF No. 1.) The undersigned sought a response 6 from the Office of the Attorney General, and Deputy Attorney General Mark responded by 7 special appearance. Counsel explained how California Medical Facility (“CMF”) implements its 8 Institutional Heat Plan and stated that plaintiff is only entitled to “cooling measures,” such as ice, 9 if Stage II is implemented. (ECF No. 4.) However, because Stage II was not implemented at 10 CMF in either May or June of 2019 because the temperature inside the facility had not exceeded 11 90 degrees, counsel stated that plaintiff was not entitled to receive ice. The response was 12 supported by litigation coordinator’s declaration. (ECF No. 4-1.) 13 Plaintiff countered by filing a motion for contempt against counsel Grant and litigation 14 coordinator B. Ebert, claiming such individuals committed or suborned perjury. (ECF No. 7.) 15 A. Governing Standards 16 A temporary restraining order is an extraordinary measure of relief that a federal court 17 may impose without notice to the adverse party if, in an affidavit or verified complaint, the 18 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 19 movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The 20 purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller 21 hearing. The standard for issuing a temporary restraining order is essentially the same as that for 22 issuing a preliminary injunction. See Beaty v. Brewer, 649 F.3d 1071, 1076 (9th Cir. 2011) 23 (affirming district court’s denial of the motion for a temporary restraining order or preliminary 24 injunction by discussing either as under the same standard for issuing preliminary injunctive 25 relief); see also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 26 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is 27 “substantially identical”). “A preliminary injunction is an extraordinary remedy never awarded as 28 of right.” Winter, 555 U.S. at 24 (citation omitted). 1 The moving party must demonstrate “that he is likely to succeed on the merits, that he is 2 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities 3 tips in his favor, and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 4 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 5 (2008). The Ninth Circuit has held that injunctive relief may issue, even if the moving party 6 cannot show a likelihood of success on the merits, if “serious questions going to the merits and a 7 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary 8 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 9 that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 10 1127, 1135 (9th Cir. 2011) (internal quotation omitted). Under either formulation of the 11 principles, preliminary injunctive relief should be denied if the probability of success on the 12 merits is low. See Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 13 1995) (“‘[E]ven if the balance of hardships tips decidedly in favor of the moving party, it must be 14 shown as an irreducible minimum that there is a fair chance of success on the merits.’” (quoting 15 Martin v. Int’l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984))). 16 Federal courts are courts of limited jurisdiction and in considering a request for 17 preliminary injunctive relief, the court is bound by the requirement that as a preliminary matter, it 18 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 19 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 20 464, 471 (1982). If the court does not have an actual case or controversy before it, it has no 21 power to hear the matter in question. Id. Further, requests for prospective relief are limited by 18 22 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act (“PLRA”), which requires that the 23 court find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the 24 violation of the Federal right, and is the least intrusive means necessary to correct the violation of 25 the Federal right.” Finally, the pendency of an action does not give the court jurisdiction over 26 prison officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491-93 (2009). The 27 court’s jurisdiction is limited to the parties in this action and to the viable legal claims upon which 28 this action is proceeding. Summers, 555 U.S. at 491-93. 1 B. Discussion 2 Here, plaintiff has had over seven months in which to file a complaint. Despite repeated 3 extensions of time, and warning that no further extensions of time would be granted (ECF No. 4 12), plaintiff has not yet filed a complaint. Because no operative complaint is on file, plaintiff 5 cannot demonstrate a likelihood of success on the merits of any claim, and his motion must be 6 denied. See, e.g., Silvas v. G.E. Money Bank, 449 F. App’x 641, 645 (9th Cir. 2011) (“Because 7 the operative complaint has been dismissed, we dismiss this interlocutory appeal [for preliminary 8 injunctive relief] as moot.”). 9 In addition, none of the individuals named by plaintiff in his motion have been served or 10 appeared in this action. Until defendants have been served with process, this court lacks personal 11 jurisdiction over the defendants, and may not grant the injunctive relief he seeks. See Fed. R. 12 Civ. P. 65(d)(2); see Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 13 (1999) (noting that one “becomes a party officially, and is required to take action in that capacity, 14 only upon service of summons or other authority-asserting measure stating the time within which 15 the party served must appear to defend.”). 16 Plaintiff’s subsequent motion for contempt fails for the same reason. “[A] nonparty with 17 notice cannot be held in contempt until shown to be in concert or participation.” Zenith Radio 18 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Deputy Attorney General Grant and 19 litigation coordinator Ebert are not named or implicated in plaintiff’s motion for injunctive relief. 20 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive 21 relief (ECF No. 1) be denied without prejudice, and his motion for contempt (ECF No. 7) be 22 denied. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 28 //// 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: February 21, 2020 ‘ Acid) Aharon 5 KENDALL J. NE /diaz1241 tropi UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28