(PC) McElroy v. Gomez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN MCELROY, ) Case No.: 1:20-cv-00658-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S SECOND MOTION FOR TEMPORARY RESTRAINING 14 GOMEZ, et al., ) ORDER BE DENIED ) 15 Defendants. ) [ECF No. 15] ) 16 ) ) 17 ) 18 Plaintiff Latwahn McElroy is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s second motion for a temporary restraining order, filed 21 on June 18, 2020. 22 I. 23 LEGAL STANDARDS 24 Procedurally, a federal district court may issue emergency injunctive relief only if it has 25 personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy 26 Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a 27 party officially, and is required to take action in that capacity, only upon service of summons or other 28 authority-asserting measure stating the time within which the party serve must appear to defend.). 1 Furthermore, the pendency of this action does not give the Court jurisdiction over prison officials in 2 general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 599 3 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to the 4 viable legal claims upon which this action is proceeding. Summers, 555 U.S. at 491−93; Mayfield, 5 599 F.3d at 969. 6 A temporary restraining order is an extraordinary measure of relief that a federal court may 7 impose without notice to the adverse party if, in an affidavit or verified complaint, the moving party 8 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 9 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The standard for 10 issuing a temporary restraining order is essentially the same as that for issuing a preliminary 11 injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) 12 (analysis for temporary restraining orders and preliminary injunctions is “substantially identical”). 13 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 14 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 15 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 16 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 17 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction may 18 only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 19 “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to 20 obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th 21 Cir. 2011). 22 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison 23 Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, 24 extends no further than necessary to correct the violation of the Federal right, and is the least intrusive 25 means necessary to correct the violation of the Federal right.” Section 3626(a)(2) also places 26 significant limits upon a court’s power to grant preliminary injunctive relief to inmates. “Section 27 3626(a) therefore operates simultaneously to restrict the equity jurisdiction of federal courts and to 28 protect the bargaining power of prison administrators – no longer may courts grant or approve relief 1 that binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of 2 the State of California, 220 F.3d 987, 999 (9th Cir. 2000). 3 II. 4 DISCUSSION 5 Plaintiff’s current motion is rambling and incoherent. For example, in the first two pages of 6 Plaintiff’s motion, he alleges as follows: 7 I am the plaintiff in this case. Made in support of my motion for temporary restraining order & it’s annals in premising annex requisite specificity of medical mandate & p.r.o. in ex parte or 8 other alternative with pro bono to ensure effective medical care & constitutional repair within speedier relief & recovery. 9 10 As set forth in the “complaint,” the Defendants used force, restraints, and departmental equipments, detention holds and abuses of authority from what to infringe the rights and/or 11 confiscate the rights of others and “deprive medical necessities and due process and equal protections of accessibility and the handicapped . . .” and in that wrongdoing there are several 12 injuries, damages and exposure to risk of imminent danger and irreparable harm/injury damage 13 that is/was extremely preventable (by nonetheless, as proper housing/placement scheme (non adverse) & with safeguard) in ability to use rle [sic], foot and/or leg due to spasm reoccurring; 14 confiscations of several applications: (personal walker, single cell status, accessibility to activities, several assistive aids, family visiting (failure of compliance in Armstrong, Plata v. 15 Newsom et al stipulative medical orders against the Department of Corrections), sanitary 16 supplies (to prevent mishaps) and failure of effective medical care at a time to do so as in to prevent damage eg. Coronavirus, flu like symptoms and rick of coccidiosis areas, inter alia, 17 improper placement scheme and ICC/UCC classification decisions that render or subject misappropriated discipline carelessly and recklessly with no objective … misleading, false, and 18 inaccurate reports used against the plaintiff and as a threat from what Defendants fails a valid hearing and chief disciplinary officer (within 5 days) process (another infringement of due 19 process rights). The Department and said agencies, wardens and otherwise supervisors have 20 also (been put on notice) failed to prevent such harm; to protect, and to prevent, correct, or supervise their subordinates. 21 Instead of the necessary treatment that prevents pathological defect and infection/imminent 22 dangers and/or loss of use, “the Defendants” (et al.) chose to put plaintiff in harms way 23 (unnecessarily) (witnessed by Rn. Robinson) despite the reason to know of the same medical restrictions & consequences and ignored the obligations [fails safe custody and infringes tit. 15 24 C.C.R. 3271], inter alia, due to allergies, dust, deplorable … 25 (Mot. at 1-2, ECF No. 15.) Plaintiff’s allegations continue in the same fashion in the following 26 twenty-four pages. (Id.) Nonetheless, as best the Court can decipher, Plaintiff seeks a temporary 27 restraining order directing Defendants to provide him certain medical care and devices. For the 28 1 following reasons, Plaintiff’s motion should be denied. 2 First, Plaintiff cannot show that he has a likelihood of success on the merits because the 3 complaint was screened on June 11, 2020, and failed to state any cognizable claims for relief. (ECF 4 No. 11.) Second, Plaintiff has not demonstrated that he is likely to suffer irreparable harm in the 5 absence of a temporary restraining order. The court cannot, based on Plaintiff's lay opinion as to how 6 to properly treat his medical condition(s), find that he is likely to prevail on the merits and that he will 7 likely suffer irreparable harm in the absence of an order directing defendants to provide him with a 8 cast, electric shock therapy, and a specialized brace. Plaintiff has not offered evidence demonstrating 9 that any treatment for his condition(s) is “medically unacceptable under the circumstances ... and that 10 [defendants'] chose this course in conscious disregard of an excessive risk to plaintiff's health.” 11 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Thus, at this stage in the litigation, plaintiff has 12 not shown that his preferred course of treatment amounts to more than a difference in opinion as to the 13 nature and extent of plaintiff's condition and the methodology of treatment. See Sanchez v. Vild, 891 14 F.2d 240, 242 (9th Cir.1989) (a difference in opinion between medical personnel does not amount to 15 deliberate indifference). Third, a request for a preliminary injunction is also premature insofar as no 16 Defendant has been served. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 17 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over 18 the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 19 persons not before the court.”). For all these reasons, Plaintiff’s motion for a preliminary injunction 20 should be denied. 21 III. 22 RECOMMENDATION 23 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for a 24 temporary restraining order, filed on June 18, 2020, be denied. 25 This Findings and Recommendation will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 27 after being served with this Findings and Recommendation, Plaintiff may file written objections with 28 wOASe 4: UVM YOU IN IN EA SPADE a OI eee PAY VI 1 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 3 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 4 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 || IT IS SO ORDERED. A (re 7 IlDated: _ June 19, 2020 OF 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28