(PC) Smith v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LENOIR SMITH, No. 2:18-cv-2942 KJM AC P 12 Plaintiff, 13 v. ORDER and 14 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS CORRECTIONS AND 15 REHABILITATIONS, et al., 16 Defendants. 17 18 I. Introduction 19 Plaintiff is a California state prisoner, proceeding pro se with a civil rights action under 42 20 U.S.C. § 1983. By order filed July 11, 2019, the undersigned granted plaintiff’s request to 21 proceed in forma pauperis, found that the complaint was subject to dismissal but granted leave to 22 file a First Amended Complaint (FAC), and denied plaintiff’s request for preliminary injunctive 23 relief. See ECF No. 15. Plaintiff has now filed a First Amended Complaint (FAC) and a motion 24 for temporary restraining order (TRO). ECF Nos 18, 19. 25 This action is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 26 Rule 302(c). For the reasons that follow, the FAC is found inappropriate for service and plaintiff 27 will be given a final opportunity to amend. The undersigned also recommends the denial of 28 plaintiff’s TRO motion. 1 II. Plaintiff’s First Amended Complaint (FAC) 2 The FAC and attached exhibits total 314 pages. Additionally, plaintiff filed a “motion of 3 apology” stating that he inadvertently failed to include two pages in his FAC. ECF No. 20. 4 These pages, together with page 2 of the FAC, identify a total of 37 correctional defendants at 5 five different prisons. See ECF No. 19 at 2, ECF No. 20 at 4-5. 6 The court has previously informed plaintiff of the legal standards guiding this court’s 7 review of his pleadings. See ECF No. 15 at 2-3. Although required to liberally construe pro se 8 pleadings, under 28 U.S.C. § 1915A(b) this court must dismiss claims that are legally “frivolous 9 or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary 10 relief from an immune defendant. 11 Despite the court’s prior instructions, the FAC—like the original complaint—provides a 12 detailed chronology of injustices against plaintiff without identifying specific legal claims against 13 specific defendants. The FAC chronicles plaintiff’s incarceration beginning in 2000. The 14 gravamen of the complaint appears to be as follows: 15 Plaintiff alleges that he learned, in 2015, that his CDCR records perpetuated a false statement from his Sacramento County records 16 that plaintiff was convicted in 2002 of attempted murder of a peace officer in 2000, a charge for which plaintiff was acquitted. Plaintiff 17 contends that he had long suspected the perpetuation of this falsehood due to the ongoing retaliatory conduct against him by 18 numerous correctional officials, including the filing of numerous Rules Violation Reports (RVRs), prolonged stays in Administrative 19 Segregation (Ad Seg), and attempts on plaintiff’s life. Plaintiff also contends that at the December 2015 hearing on his motion for 20 resentencing under Proposition 36, the district attorney argued that plaintiff really did intend to murder a peace officer in 2000 despite 21 his acquittal in 2002. Plaintiff is currently serving a sentence of 25- years-to-life for violation of California Health and Safety Code § 22 11352(a) (transportation of controlled substance), a non-violent offense. 23 24 ECF No. 15 at 3-4 (initial screening order). 25 It appears that on August 14, 2017, plaintiff succeeded in having this information removed 26 from his CDCR file, when CMF Warden Fox granted plaintiff’s Appeal Log No. CMF-M-17- 27 01627 on Second Level Review, and ruled in pertinent part: 28 //// 1 The Appeal Review was able to identify the appellant was not convicted of the charge of assault on Sac County Deputy and was 2 able to delete the statement of (“Assault on a Sac County Deputy (attempted to throw Deputy off of tier)”) in the SOMS1 inmate 3 precautions section due to it not being factual. 4 ECF No. 1 at 19. 5 Notwithstanding the court’s prior instructions, the FAC only summarily references 6 plaintiff’s putative legal claims. Plaintiff has simply listed the “1st, 8th and 14th Amendments,” 7 and checked every box on the form portion of the FAC to “[i]dentify the issue[s] involved.”2 8 ECF No. 19 at 3. It is not the court’s responsibility to sift through 314 pages of material to 9 identify the factual and legal bases of claims against 37 defendants at five correctional facilities 10 regarding matters that span two decades. That is plaintiff’s burden. 11 Accordingly, the FAC will be dismissed with leave to file a Second Amended Complaint 12 (SAC) that is no more than ten (10) pages in length. The SAC shall be completed on the form 13 complaint provided with this order. No exhibits are to be filed – the court will designate the 14 FAC and its exhibits as exhibits to the SAC. The court will also send plaintiff a copy of this 15 court’s original screening order, which informs plaintiff of the applicable legal standards for 16 stating cognizable claims. See ECF No. 15. 17 III. Motion for a Temporary Restraining Order 18 In a 49-page motion3 filed with reference to the FAC, plaintiff asks this court to issue a 19 temporary restraining order (TRO) against “CDCR and its personnel” to enjoin them from 20 continuing to engage in their “long line of actions . . . that show retaliation” against plaintiff that 21 is both “constant” and “unrelenting.” ECF No. 18 at 13. Plaintiff identifies retaliation in the 22 form of false RVRs, including false allegations of plaintiff assaulting staff; repeated and 23 prolonged placements in Ad Seg; physical harm against plaintiff by correctional staff; physical 24 harm against plaintiff by other inmates at the direction of correctional staff; and opposition to 25 1 The Strategic Offender Management System (SOMS) is CDCR’s electronic records system. 26 2 These options, all checked my plaintiff, identify issues concerning “basic necessities, disciplinary proceedings, excessive force by an officer, mail, property, threat to safety, access to 27 the court, exercise of religion, medical care, retaliation and other.” ECF No. 19 at 3. 3 Plaintiff states that the motion was originally 143 pages long with exhibits, but that prison 28 limitations on copying necessitated the shorter motion. ECF No. 18-1 at 1. 1 plaintiff’s petition for resentencing under Proposition 36. Id. at 1-13. Although it is unclear, 2 plaintiff’s TRO motion may also be directed to the Sacramento County Sheriff’s Department and 3 the Sacramento County District Attorney’s Office, which pursued the initial charge against 4 plaintiff for attempted murder on a peace office, for which plaintiff was acquitted. Id. at 1-3. 5 However, “[a] federal court may issue an injunction [only] if it has personal jurisdiction over the 6 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 7 persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th 8 Cir. 1985) 9 Plaintiff’s motion for a TRO is premised on claims of retaliation which are inadequately 10 plead. “Within the prison context, a viable claim of First Amendment retaliation entails five basic 11 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 12 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 13 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 14 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations 15 omitted) (emphasis added). Filing administrative grievances and initiating litigation are protected 16 activities within the prison context. Id. If plaintiff means to claim that defendants’ retaliation 17 violated his First Amendment rights, that is not clear from the FAC because he does not identify 18 his own protected conduct; nor does he clearly identify specific defendants in relation to specific 19 retaliatory acts and retaliatory motive. 20 On the other hand, if plaintiff is contending that defendants retaliated against him based 21 on their false beliefs about him, there may be no cognizable claim. As this court previously 22 informed plaintiff, prisoners do not have a due process right or Eighth Amendment right to be 23 free from false accusations, and disciplinary proceedings need meet only basic procedural 24 requirements to satisfy due process. Finally, to state a claim for cruel and unusual punishment, 25 plaintiff must allege that a specific defendant engaged in specifically challenged conduct with a 26 “‘sufficiently culpable state of mind.’” Wilson v. Seiter, 501 U.S. 294, 297 (1991); see also 27 Farmer v. Brennan, 511 U.S. 825, 934 (2011). 28 //// 1 Under Rule 65, Federal Rules of Civil Procedure, “[t]he court may issue a temporary 2 restraining order without written or oral notice to the adverse party” only if “specific facts in an 3 affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or 4 damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. 5 Civ. P. 65(b)(1). Ex parte relief under Rule 65 is limited to situations where notice to the adverse 6 party would likely prove useless. See Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 7 (9th Cir. 2006) (citing cases). The legal standards for obtaining a temporary restraining order are 8 essentially identical to those for obtaining a preliminary injunction.4 See Cal. Indep. Sys. 9 Operator Corp. v. Reliant Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001); 10 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 11 1995). “The sole purpose of a preliminary injunction is to ‘preserve the status quo ante litem 12 pending a determination of the action on the merits.’” Sierra Forest Legacy v. Rey, 577 F.3d 13 1015, 1023 (9th Cir. 2009) (quoting L.A. Memorial Coliseum Comm’n v. NFL, 634 F.2d 1197, 14 1200 (9th Cir.1980)). In cases brought by prisoners involving conditions of confinement, any 15 preliminary injunctive relief “must be narrowly drawn, extend no further than necessary to correct 16 the harm the court finds requires preliminary relief, and be the least intrusive means necessary to 17 correct the harm.” 18 U.S.C. § 3626(a)(2). 18 As the undersigned previously found in recommending the denial of plaintiff’s first TRO 19 motion, without a viable complaint the court cannot assess plaintiff’s likelihood of success on the 20 merits or identify the status quo that plaintiff seeks to maintain. Additionally, as the undersigned 21 previously noted, because CDCR has removed the challenged information from SOMS, it does 22 not appear that plaintiff is likely to suffer additional harm in the absence of preliminary relief. 23 4 In evaluating the merits of a motion for preliminary injunctive relief, the court considers 24 whether the movant has shown that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 25 favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense 26 Council, 555 U.S. 7, 20 (2008); accord Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). A preliminary injunction is appropriate when a plaintiff demonstrates . . . “serious 27 questions going to the merits and a hardship balance [] tips sharply toward the plaintiff, . . . assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies 28 v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 1 | For these reasons, the undersigned recommends that plaintiffs motion for a temporary restraining 2 | order be denied without prejudice. 3 VI. Conclusion 4 For the foregoing reasons, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s First Amended Complaint, ECF No. 19, fails to state a claim and will not be 6 || served. Plaintiff may file a Second Amended Complaint (SAC) within thirty (30) days after the 7 | filing date of this order, subject to the following limits: 8 a. The SAC shall be set forth on the form complaint provided with this order; 9 b. The SAC shall not exceed ten (10) pages in length; and 10 c. The SAC shall include no exhibits — the court will designate the FAC and its 11 exhibits as exhibits to the SAC. 12 2. Failure of plaintiff to timely file a SAC will result in a recommendation that this action 13 | be dismissed without prejudice. 14 3. The Clerk of Court is directed to send plaintiff, together with a copy of this order: (1) a 15 || blank copy of the prisoner civil rights complaint used in this district; and (2) a copy of this court’s 16 || initial screening order (ECF No. 15). 17 Additionally, for the reasons set forth above, IT IS HEREBY RECOMMENDED that 18 | plaintiffs motion for a temporary restraining order, ECF No. 18, be denied without prejudice. 19 These findings and recommendations are submitted to the United States District Judge 20 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 21 || days after being served with these findings and recommendations, any party may file written 22 || objections with the court and serve a copy on all parties. Such a document should be captioned 23 | “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 24 | failure to file objections within the specified time may waive the right to appeal the District 25 | Court’s order. Martinez vy. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 | DATED: March 30, 2020 ' Cte. 27 ALLISONCLAIRE. 28 UNITED STATES MAGISTRATE JUDGE