(PC)Wells v. Newsom ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE WELLS, No. 2:20-cv-1557 WBS AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOME, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this court are plaintiff’s two motions for a temporary restraining order and 21 preliminary injunction. See ECF Nos. 28, 30. For the reasons stated below, the undersigned will 22 recommend that the motions be denied. 23 I. PROCEDURAL POSTURE 24 Plaintiff initiated this action in August 2020, with a letter claiming that his life was in 25 jeopardy. ECF No. 1. His First Amended Complaint, ECF Nos. 26, was filed in November 2020 26 and has not yet been screened. Plaintiff has filed numerous requests for miscellaneous relief and 27 court intervention, all of which have been denied as premature, procedurally defective, or both. 28 One prior request for preliminary injunctive relief has been denied by the district judge. See ECF 1 Nos. 24 (findings and recommendations), 27 (order adopting findings and recommendations). 2 Because the First Amended Complaint has not been screened, no defendant has been served. 3 II. FACTS ALLEGED IN SUPPORT OF PRELIMINARY INJUNCTIONS 4 A. November 23, 2020 Motion 5 Plaintiff’s first motion for a temporary restraining order and preliminary injunction, filed 6 November 23, 2020, alleges that injunctive relief should be granted against “(CDCR), Its 7 Employees, c/o’s, clinitons, etc.,” and that plaintiff should be granted single cell status because he 8 is being retaliated against in various ways that ultimately threaten his safety. See generally ECF 9 No. 28. 10 B. January 4, 2021 Motion 11 Plaintiff’s second motion for a temporary restraining order and preliminary injunction, 12 filed January 4, 2020, again makes general allegations that prison officials are retaliating against 13 him in various ways. See generally ECF No. 30. Some of the actions of prison officials that 14 plaintiff would like to have enjoined by the court include, but are not limited to, taking his 15 property, falsifying behavioral reports, opening his legal mail, and using other inmates to threaten 16 and/or attack him. See ECF No. 30 at 1. 17 II. APPLICABLE LAW 18 The legal standards for obtaining a temporary restraining order are essentially identical to 19 those for obtaining a preliminary injunction. See Cal. Indep. Sys. Operator Corp. v. Reliant 20 Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001); Lockheed Missile & Space 21 Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Plaintiff is informed 22 that “[a] preliminary injunction is an ‘extraordinary and drastic remedy,’ 11A C. Wright, A. 23 Miller, & M. Kane, Federal Practice and Procedure § 2948, p. 129 (2d ed.1995) [ ] (footnotes 24 omitted); it is never awarded as of right, Yakus v. United States, 321 U.S. 414, 440 (1944).” 25 Munaf v. Geren, 553 U.S. 674, 689-90 (2008). “The sole purpose of a preliminary injunction is 26 to ‘preserve the status quo ante litem pending a determination of the action on the merits.’” 27 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citing L.A. Memorial 28 Coliseum Comm’n v. NFL, 634 F.2d 1197, 1200 (9th Cir. 1980)); see also 11A Charles Alan 1 Wright & Arthur R. Miller, Federal Practice and Procedure § 2947 (2d ed. 2010). 2 In evaluating the merits of a motion for preliminary injunctive relief, the court considers 3 whether the movant has shown that “he is likely to succeed on the merits, that he is likely to 4 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 5 favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense 6 Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) 7 (quoting Winter). The propriety of a request for injunctive relief hinges on a significant threat of 8 irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 9 F.2d 668, 674 (9th Cir. 1988); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 10 1131-32 (9th Cir. 2011). 11 Additionally, in cases brought by prisoners involving conditions of confinement, any 12 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 13 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 14 correct the harm.” 18 U.S.C. § 3626(a)(2). 15 Finally, a district court may not issue preliminary injunctive relief without primary 16 jurisdiction over the underlying cause of action. Sires v. State of Washington, 314 F.2d 883, 884 17 (9th Cir. 1963). Additionally, an injunction against individuals who are not parties to the action is 18 strongly disfavored. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969). 19 III. DISCUSSION 20 A. Issues Common to Both Motions 21 Because the First Amended Complaint has not yet been screened, it remains to be seen 22 whether plaintiff has stated any cognizable claim. Accordingly, plaintiff’s likelihood of success 23 on the merits cannot be assessed at this time. Without a showing of likely success, injunctive 24 relief is unavailable. See Winter, 555 U.S. at 20. 25 Moreover, because no defendant has been served and none has appeared, the court has no 26 basis for the exercise of jurisdiction over the individuals who plaintiff seeks to enjoin. See Zenith 27 Radio Corp., supra. 28 //// 1 B. November 23, 2020 Motion 2 None of the harm that plaintiff states he has experienced, or believes he will experience, at 3 the hands of defendant prison officials appears to constitute a significant threat of “irreparable 4 harm” or suggests “immediate threatened injury.” See Caribbean Marine Serv. Co., 844 F.2d at 5 674; see also Fed. R. Civ. P. 65(b)(1)(A) (stating temporary restraining order may be issued 6 without notice if clear showing of immediate and irreparable injury, loss, or damage will result to 7 movant before adverse party can be heard). Plaintiff does state that certain named defendants 8 facilitated an attack on him by three other inmates. See ECF No. 28 at 1. Plaintiff appears to 9 further allege that these defendants then falsified documents when they characterized the incident 10 as one in which plaintiff had simply been in one-on-one fights. See id. He asserts that CDCR “is 11 hell bent on falsifying my C-File as evidenced by six 115[s] in the past 8 months.” See id. These 12 allegations do not demonstrate a significant threat of irreparable harm. Plaintiff has not presented 13 facts indicating that a future physical attack is imminent or even likely. And because processes 14 exist to challenge unsupported disciplinary charges, even the likely filing of unsubstantiated rules 15 violation reports would not count as “irreparable” harm. 16 Furthermore, to the extent plaintiff asserts that he is “in fear of [sic] [his] life from C/Os 17 and inmates” because custodial personnel motivate inmates to attack other inmates (see ECF No. 18 28 at 2), plaintiff’s fear is unsupported by facts that lift it beyond the level of speculation. Mere 19 speculative injury does not constitute irreparable injury sufficient to support a preliminary 20 injunction. Caribbean Marine Serv. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988); see 21 also Fed. R. Civ. Proc. 65(b)(1)(A) (stating clear, immediate and irreparable injury requirement). 22 Finally, because the motion fails to establish that there is a credible threat of immediate 23 and irreparable harm to plaintiff, an injunction requiring single cell status and prohibiting 24 unspecified further retaliation (see ECF No. 28 at 2) is not in the best interests of the public at this 25 stage in the proceedings. For all these reasons, the undersigned will recommend that the 26 November 2020 motion for injunctive relief be denied. 27 //// 28 //// 1 B. January 4, 2021 Motion 2 Plaintiffs January 2021 motion for injunctive relief is even more deficient than the 3 || November 2020 motion. It asks the court: (1) to issue an injunction directing Warden Covillo to 4 | “direct his staff to return [plaintiff's] property”; (2) to issue restraining orders against “all C/Os 5 || mentioned in this case” due to the retaliatory actions they have taken; (3) to direct the new 6 || director of CDCR to conduct an [unspecified] investigation in which plaintiff participates, and (4) 7 || to enjoin CDCR, defendant Covillo and prison staff from violating his rights, inciting violence 8 || amongst inmates, and depriving him of his legal mail. See id. 9 Plaintiff's scant allegations lack evidentiary support, and even if true would not 10 || demonstrate a likelihood of irreparable harm absent preliminary injunctive relief. Accordingly, 11 | the undersigned will recommend that the January 2021 motion also be denied. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Plaintiff’s motion for a temporary restraining order and preliminary injunction, filed 14 | November 23, 2020 (ECF No. 28), be DENIED, and 15 2. Plaintiffs motion for a temporary restraining order and preliminary injunction, filed 16 | January 4, 2021 (ECF No. 30) be DENIED. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days 19 | after being served with these findings and recommendations, plaintiff may file written objections 20 || with the court. Such a document should be captioned “Objections to Magistrate Judge’ □ Findings 21 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 22 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 23 | (9th Cir. 1991). 24 | DATED: February 2, 2021 ' ~ 26 UNITED STATES MAGISTRATE JUDGE 27 28