(PC) Merino v. Gomez ( 2021 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2: 21-cv-0572 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GOMEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions requesting to be transferred 19 to a different prison. (ECF Nos. 11, 13.) The undersigned construes these motions as requests for 20 injunctive relief. For the reasons stated herein, the undersigned recommends that plaintiff’s 21 motions for injunctive relief be denied. 22 Legal Standard for Injunctive Relief 23 “The proper legal standard for preliminary injunctive relief requires a party to demonstrate 24 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 25 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 26 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) 27 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food 28 Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish 1 that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”) 2 (quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth 3 Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates ... that 4 serious questions going to the merits were raised and the balance of hardships tips sharply in the 5 plaintiff’s favor.” All. for Wild Rockies, 632 F.3d at 1134–35 (quoting Lands Council v. McNair, 6 537 F.3d 981, 987 (9th Cir. 2008)) (en banc), overruled on other grounds by Winter, 555 U.S. 7.1 7 The party seeking the injunction bears the burden of proving these elements. See Klein v. City of 8 San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. v. Baldrige, 9 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege imminent harm 10 sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a 11 prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an extraordinary remedy 12 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 13 Winter, 555 U.S. at 22. 14 Discussion 15 This action proceeds on plaintiff’s complaint filed March 29, 2021, against defendants 16 California State Prison-Sacramento (“CSP-Sac”) Warden Lynch and CSP-Sac Correctional 17 Officers Gomez and Navarro. Plaintiff alleges that defendants Gomez and Navarro disregarded 18 plaintiff’s safety concerns regarding his cellmate in violation of the Eighth Amendment. As a 19 result of defendants’ disregard of plaintiff’s safety concerns, on October 23, 2020 plaintiff’s 20 cellmate attacked and viciously beat plaintiff. Plaintiff alleges that defendant Lynch cultivated 21 and promoted a policy permitting CSP-Sac correctional officers ignore inmate safety concerns in 22 violation of the Eighth Amendment. 23 Plaintiff is currently housed at CSP-Sac. 24 //// 25 1 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale 26 approach survives “when applied as part of the four-element Winter test.” All. for the Wild Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of 27 hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 28 injunction is in the public interest.” Id. at 1135. 1 In the first request for injunctive relief, plaintiff alleges that when he started his 602 2 appeal at the informal response level, the custody staff gave him lots of trouble for writing the 3 appeal. (ECF No. 11.) Plaintiff alleges that custody staff gave him “reprisals” and even tried to 4 physically hurt plaintiff. (Id.) Plaintiff requests that the court order his transfer to a different 5 prison or he will have more trouble with custody staff for filing his complaint. (Id.) 6 In the second request for injunctive relief, plaintiff alleges that officers threaten and beat 7 inmates for writing complaints. (ECF No. 13.) Plaintiff alleges that he is at risk of being hurt by 8 prison staff now that he has sent his complaint to the court. (Id.) Plaintiff alleges that he does not 9 feel safe. (Id.) Plaintiff requests that the court orders his transfer to a different prison. (Id.) 10 In his requests for injunctive relief, plaintiff does not describe the “reprisals” prison staff 11 allegedly made in retaliation for filing his 602 and/or complaint. Plaintiff does not describe the 12 attempts prison staff allegedly made to physically harm him in retaliation for filing his 602 and/or 13 complaint. Plaintiff does not describe when these alleged “reprisals” and attempts to physically 14 harm him occurred. Plaintiff does not identify the prison staff who allegedly made these 15 “reprisals” and attempts to physically harm him. Plaintiff does not describe how he knows that 16 these “reprisals” and attempts to physically harm him are related to his filing his 602 and/or 17 complaint. 18 Based on the vague allegations in plaintiff’s pending motions, the undersigned finds that 19 plaintiff has failed to demonstrate that the threat of physical or other injury to him based on his 20 filing of his 602 and/or complaint is more than speculative. See Goldie’s Bookstore, Inc. v. 21 Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir.1984) (“Speculative injury does not 22 constitute irreparable injury.”). A presently existing actual threat must be shown, although the 23 injury need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 24 100, 130–31 (1969). On these grounds, the undersigned recommends that plaintiff’s motions for 25 injunctive relief, requesting that plaintiff be transferred to a different prison, be denied. 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 27 district judge to this action; and 28 //// 1 ITIS HEREBY RECOMMENDED that plaintiffs motions for injunctive relief (ECF 2 | Nos. 11, 13) be denied. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 5 | after being served with these findings and recommendations, plaintiff may file written objections 6 || withthe court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 8 | failure to file objections within the specified time may waive the right to appeal the District 9 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 | Dated: April 16, 2021 Aectl Aharon 12 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 13 14 15 Mer572.inj 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:21-cv-00572

Filed Date: 4/16/2021

Precedential Status: Precedential

Modified Date: 6/19/2024