(PC) Allen v. Lopez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ALLEN, Case No. 1:18-cv-00808-NONE-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR INJUNCTIVE RELIEF BE DENIED 14 DR. SPAETH, et al., (ECF No. 77) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO SEND PLAINTIFF A COPY OF THESE FINDINGS 18 AND RECOMMENDATIONS 19 20 Kevin Allen (“Plaintiff”), a prisoner in the custody of the California Department of 21 Corrections and Rehabilitation, is proceeding in forma pauperis in this civil rights action filed 22 pursuant to 42 U.S.C. § 1983. On August 30, 2021, Plaintiff filed a motion pro se, asking the 23 Court to order the prison to allow Plaintiff to call his attorney and family. (ECF No. 77). On 24 September 14, 2021, Defendants filed an opposition. (ECF No. 80). For the reasons that follow, 25 the Court will recommend that Plaintiff’s motion be denied. 26 I. SUMMARY OF PLAINTIFF’S MOTION 27 Plaintiff alleges that he has not had outside exercise for six weeks, and officers will not 28 allow Plaintiff to call his attorney or his family. Officers told Plaintiff he is only allowed to use 1 the phone on Saturdays and Sundays, but his attorney is not in the office on these days. 2 Plaintiff has not heard from his family in two and a half months, and he is very worried 3 about them. 4 Plaintiff asks for an order directing the prison to allow him to call his family and his 5 attorney via collect calls for ninety days.1 6 II. SUMMARY OF DEFENDANTS’ OPPOSITION 7 In opposition, Defendants argue that “[t]he Court should deny Plaintiff’s motion because 8 it is unrelated to his deliberate indifference claim against Defendants and seeks injunctive relief 9 against non-party individuals over whom the Court has no jurisdiction.” (ECF No. 80, p. 3). 10 “Furthermore, Plaintiff is not permitted to place confidential phone calls to his attorney on an 11 inmate telephone. Instead, in order for the inmate to place or receive the call it must have already 12 received approval or clearance based upon written request from an attorney on the attorney’s 13 office letterhead stationery…. Additionally, both Plaintiff’s institution and his counsel confirmed 14 that a confidential attorney-client call with Plaintiff occurred on August 30, 2021, at 9 a.m., the 15 same day the instant motion was filed.” (Id. at 3-4) (citations and internal quotation marks 16 omitted). 17 III. LEGAL STANDARDS 18 A federal district court may issue emergency injunctive relief only if it has personal 19 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 20 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party 21 officially, and is required to take action in that capacity, only upon service of summons or other 22 authority-asserting measure stating the time within which the party served must appear to 23 defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., 24 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 25 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive 26 relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under 27 1 While Plaintiff includes allegations regarding a lack of outdoor exercise, Plaintiff does not seek an 28 injunction requiring outdoor exercise. 1 Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,” 2 their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active 3 concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). “When a plaintiff seeks injunctive 4 relief based on claims not pled in the complaint, the court does not have the authority to issue an 5 injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 6 2015). 7 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the 8 Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is 9 narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, 10 and is the least intrusive means necessary to correct the violation of the Federal Right.” 11 On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is 12 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 13 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 14 public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural 15 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that 16 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance 17 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 18 Under the All Writs Act, federal courts “may issue all writs necessary or appropriate in 19 aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 20 § 1651(a). “The power conferred by the Act extends, under appropriate circumstances, to persons 21 who, though not parties to the original action or engaged in wrongdoing, are in a position to 22 frustrate the implementation of a court order or the proper administration of justice, and 23 encompasses even those who have not taken any affirmative action to hinder justice.” United 24 States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (footnote and citations omitted). 25 “Thus, use of the All Writs Act is appropriate in prisoner civil rights cases where non- 26 party correctional officials are impeding the prisoner-plaintiff’s ability to litigate his pending 27 action.” Hammler v. Haas, 2019 U.S. Dist. LEXIS 48377, *3-4 (E.D. Cal., Mar. 22, 2019). See 28 also Mitchell v. Haviland, 2015 U.S. Dist. LEXIS 109106, *5 (E.D. Cal., Aug. 18, 2015) (“Use of 1 the All Writs Act is appropriate in cases where prison officials, not named as defendants, 2 allegedly have taken action that impedes a prisoner’s ability to litigate his case”); Lopez v. Cook, 3 2014 U.S. Dist. LEXIS 52198, 2014 WL 1488518 (E.D. Cal., Apr. 15, 2014) (issuing an order 4 under the All Writs Act requiring prison officials to provide Plaintiff, who was in the Segregated 5 Housing Unit for non-disciplinary reasons, with two contact visits with his counsel). However, 6 “injunctive relief under the All Writs Act is to be used sparingly and only in the most critical and 7 exigent circumstances,” and only “if the legal rights at issue are indisputably clear.” Brown v. 8 Gilmore, 533 U.S. 1301, 1303 (2001) (citations and internal quotation marks omitted). 9 IV. ANALYSIS 10 The Court will recommend that Plaintiff’s motion for injunctive relief be denied. 11 On September 22, 2021, this Court held a status conference. (ECF No. 83). Plaintiff’s 12 counsel, Sirena Castillo and Catherine Noble, and Plaintiff, appeared. (Id.). Plaintiff’s counsel 13 confirmed that they can set up calls with Plaintiff, although there is some delay. Additionally, 14 Plaintiff had a confidential call with his counsel on August 30, 2021 (ECF No. 80, p. 4), nine days 15 after the date of service of his motion (ECF No. 77, p. 12). Thus, Plaintiff is now able to speak 16 with his counsel int his case, and Plaintiff’s request for an injunction directing his institution of 17 confinement to allow him to speak with his counsel is moot. 18 As to Plaintiff’s request for the Court to allow him to call his family, this request will be 19 denied because it is not related to the claims proceeding in this action. This action is proceeding 20 on Eighth Amendment claims that medical professionals were deliberately indifferent to his 21 serious medical needs by denying Plaintiff surgery. Plaintiff’s request for injunctive relief based 22 on allegations that he is not being allowed to call his family has no relationship to these claims. 23 Accordingly, Plaintiff is not entitled to injunctive relief in this case based on the allegations in his 24 motion. Pac. Radiation Oncology, 810 F.3d at 633 (“When a plaintiff seeks injunctive relief 25 based on claims not pled in the complaint, the court does not have the authority to issue an 26 injunction.”). 27 Therefore, the Court will recommend that Plaintiff’s motion for injunctive relief be 28 denied. 1 V. RECOMMENDATIONS AND ORDER 2 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that 3 | Plaintiff's filing (ECF No. 77), which the Court construes as a motion for injunctive relief, be 4 | DENIED. 5 These findings and recommendations are submitted to the United States district judge 6 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 7 | (14) days after being served with these findings and recommendations, any party may file written 8 | objections with the court. Such a document should be captioned “Objections to Magistrate 9 | Judge's Findings and Recommendations.” Any response to the objections shall be served and 10 | filed within fourteen (14) days after service of the objections. The parties are advised that failure 11 |} to file objections within the specified time may result in the waiver of rights on appeal. 12 | Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 13 1391, 1394 (9th Cir. 1991)). 14 Additionally, it is ordered that the Clerk of Court is directed to send Plaintiff a copy of 15 | these findings and recommendations. 16 7 IT IS SO ORDERED. 18 | Dated: _ September 24, 2021 [Jee heey □ 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28