Curreri v. Babue et al

Filing 75

ORDER, withdrawing the reference to the Magistrate Judge as to Plaintiff's Motion to Cease and Desist; denying Plaintiff's 62 Motion to Cease and Desist. Signed by Judge James A Teilborg on 4/19/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gerlando Curreri,
Plaintiff,

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vs.

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Paul Babue, et al.,
Defendants.

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No. CV 09-0630-PHX-JAT (MEA)
ORDER

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Plaintiff Gerlando Curreri filed this civil rights action under 42 U.S.C. § 1983 against

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multiple Pinal County Jail employees (Doc. 9). Before the Court is Plaintiff’s Motion to

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Order Cease and Desist, which is his third motion for injunctive relief (Doc. 62). Defendants

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oppose the motion (Doc. 64).
The Court will deny the motion.

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I.

Background

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Plaintiff’s claims stem from his confinement in the Pinal County Jail in Florence,

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Arizona (Doc. 9 at 1). He named the following Defendants: (1) former Nurse Practitioner

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Devanah Johnson; (2) Health and Human Services Manager Elke Jackson; and (3)

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Commander Valenzuela1 (Doc. 9).2

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Plaintiff identified this Defendant as Commander Venezuela. The Court will refer
to Defendant by his correct surname, Valenzuela.
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Upon screening, the Court dismissed Schriro, Ryan, Baldwin, Hernandez, Alford,
Beasely, Winslow, Latto, Chacon, MacKenzie, Jager, and Irby as Defendants (Doc. 15).

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In his First Amended Complaint, Plaintiff alleged that his Fourteenth Amendment

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rights were violated by Defendants’ deliberate indifference to his serious medical needs.

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Specifically, Plaintiff claimed that Johnson denied Plaintiff surgery to remove tumors on

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Plaintiff’s bones and denied Plaintiff necessary pain medication (Count 4). Plaintiff further

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alleged that Johnson ignored the findings of numerous doctors and failed to respond

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reasonably to Plaintiff’s serious medical needs (Count 5). Plaintiff asserted that Jackson was

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aware of Plaintiff’s medical condition and that it causes extreme pain but took no action to

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mitigate Plaintiff’s pain or respond to Plaintiff’s requests for medical assistance (Counts 6

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and 7). Finally, Plaintiff alleged that Valenzuela punished Plaintiff by informing Plaintiff

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that his surgery was considered elective and would not be covered by the jail. Valenzuela

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also allegedly told Plaintiff that he would no longer receive written responses to his

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grievances and, if Plaintiff continued to file grievances, he would be in “a lot of trouble”

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(Count 14).3 Plaintiff sought injunctive relief, compensatory and punitive damages, and costs

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(id. at 20).

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The Court screened the First Amended Complaint and directed Johnson, Jackson, and

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Valenzuela to respond to the respective claims against them (Doc. 11 at 15), and Defendants

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filed an Answer (Doc. 32).

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Plaintiff then filed his first and second motions for injunctive relief (Docs. 43-44),

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seeking specific medical treatment, increased law library access, internet access, permission

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to possess a laptop, relaxation of mail policies, and other supplies. The Court denied both

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motions, finding that Plaintiff’s failure to introduce any evidence to support a finding that

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he was likely to succeed on the merits or suffer irreparable harm precluded injunctive relief.

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Further, Plaintiff did not assert that he was unable to access the court and is not entitled to

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the conveniences sought in his motion (Doc. 55).

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The Court dismissed Counts 1–3, 8–13, and 15–17 for failure to state a claim (Doc. 11 at

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II.

Preliminary Injunction Standard

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A preliminary injunction is an extraordinary and drastic remedy and “one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A.

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Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)). To

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obtain a preliminary injunction, the moving party must show “that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Resources Def. Council, Inc., 129 S. Ct. 365, 374 (2008); Am. Trucking

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Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The movant has the

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burden of proof on each element of the test. Envtl. Council of Sacramento v. Slater, 184

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F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

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Furthermore, the “serious questions” version of the sliding scale test for preliminary

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injunctions remains viable after the Supreme Court’s decision in Winter. Alliance for the

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Wild Rockies v. Cottrell, 632 F. 3d 1127, 1134-35 (9th Cir. 2011). Under that test, a

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preliminary injunction is appropriate when a plaintiff demonstrates that “serious questions

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going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s]

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favor.” Id., (citing Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)).

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This approach requires that the elements of the preliminary injunction test be balanced, so

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that a stronger showing of one element may offset a weaker showing of another. Plaintiffs

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must also satisfy the other Winter factors, including the likelihood of irreparable harm. Id.

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III.

Plaintiff’s Third Motion for Injunctive Relief

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A.

Plaintiff’s Contentions

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Plaintiff requests that Defendants “cease and desist” from violating his Fifth, Sixth,

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and Fourteenth Amendment rights (Doc. 62). More specifically, Plaintiff contends that in

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December 2010 he was subjected to a search of his possessions without being present, during

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which all of his legal documents related to both his criminal case and this action were probed

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(id. at 1-2). Plaintiff maintains that his right to due process and access to the courts has been
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violated and he cannot obtain a fair trial in either his criminal case or in this action (id. at 2).

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Consequently, Plaintiff seeks an order requiring his presence any time a search of his legal

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materials is conducted (id.).

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B.

Defendants’ Response

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Defendants oppose Plaintiff’s motion, contending that he cannot meet either the

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traditional preliminary injunction standard or the sliding-scale standard (Doc 64 at 3-6).

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They maintain that Plaintiff has no right of privacy regarding a search of his personal

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possessions, including legal documents, nor does he have a right to be present when such a

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search is conducted (id. at 4).

Defendants also argue that Plaintiff has not—and

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cannot—establish irreparable harm or that his interests outweigh the interests of safety and

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security in the prison (id. at 4-5).

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C.

Plaintiff’s Reply

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Plaintiff reiterates that his constitutional rights have been violated by the search of his

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legal materials outside his presence (Doc. 66). Further, Plaintiff states that he will suffer

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irreparable harm in his criminal case because his trial is imminent and his files are in disarray

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(id. at 2-3). Plaintiff argues that the balance of hardships tips in his favor because it would

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be no additional labor for Defendants to ensure Plaintiff is present during a search (id. at 3).

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Plaintiff claims that he is innocent of the criminal charges against him and that he has fought

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these charges for four years (id. at 5-8).

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IV.

Analysis

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The Court will deny Plaintiff’s motion for the following reasons.

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First, an injunction should typically not issue if it “is not of the same character, and

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deals with a matter lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, Fla.,

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122 F.3d 41, 43 (11th Cir. 1997). An exception lies when “the preliminary relief is directed

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to the prisoner’s access to the Courts.” Prince v. Schriro, et al., 2009 WL 1456648, at *4 (D.

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Ariz. May 22, 2009),4 citing Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990). In

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See Prince v. Schriro, et al., CV 08-1299-PHX-SRB (JRI) (Doc. 32, Order adopting
R & R at Doc. 28).
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that instance, “a nexus between the preliminary relief and the ultimate relief sought is not

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required.” Id. But here, Plaintiff argues that unidentified staff at the Pinal County Jail have

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searched—and disrupted—his legal materials outside his presence. He does not specifically

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link those actions to his ability to prosecute this case. Indeed, Plaintiff’s motion and reply

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focuses solely on his criminal case. As a consequence, it appears that Plaintiff is seeking a

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blanket order instructing Pinal County Jail staff to search his legal materials only while he

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is present. This is unrelated to the merits of this action, which deals with alleged deliberate

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indifference to Plaintiff’s serious medical needs. This reason alone supports denial of

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Plaintiff’s motion.

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Second, Plaintiff does not identify the individuals who have allegedly searched his

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legal materials outside his presence. But Plaintiff does not state that Defendants were those

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individuals or were involved in any search of Plaintiff’s property. Because a court may issue

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an injunction against a non-party only where the non-party acts in active concert or

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participation with an enjoined party, Fed. R. Civ. P. 65(d), and Plaintiff has made no such

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showing, his motion must be denied.

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Third, even considering the merits of Plaintiff’s request, he fails to demonstrate that

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he is likely to succeed on the merits of his claim or that serious questions on the merits exist.

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While it is well-settled that inmates have a constitutional right of access to the courts,

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Bounds v. Smith, 430 U.S. 817, 821 (1977), this is only a right to bring petitions or

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complaints to the federal court and not a right to discover such claims or even to litigate them

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effectively once filed with a court. See Lewis v. Casey, 518 U.S. 343, 354 (1996); see also

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Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). To maintain an access-to-the-courts

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claim, an inmate must submit evidence showing an “actual injury” resulting from the

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defendant’s actions. See Lewis, 518 U.S. at 349. With respect to an existing case, the actual

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injury must be “actual prejudice . . . such as the inability to meet a filing deadline or to

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present a claim.” Id. at 348-49.

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It may be possible that the unauthorized and unjustified seizure of necessary legal

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materials could lead to a finding of denial of access to the courts. See Gluth v. Kangas, 951
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F.2d 1504, 1508 (9th Cir. 1991) (arbitrarily denying access to a prison library could

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constitute a violation of the right of access to the courts, even if the regulations governing

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library access were arguably facially valid). But Plaintiff does not articulate that he has

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failed to meet any specific deadline in this case because of the search of his legal materials.

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As such, Plaintiff has not demonstrated an actual injury required to support an access-to-

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courts claim for injunctive relief. See Lewis, 518 U.S. at 349. The Court finds that he has

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not carried his burden to show that an injunction is warranted.

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Fourth, and finally, Plaintiff similarly fails to demonstrate a likelihood of irreparable

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harm. He provides no specific detail about any documents that were taken, destroyed, or

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disseminated, thereby vitiating the possibility of an irreparable-harm finding. His general

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assertion that he cannot receive a fair trial in this action or in his criminal case is far too

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speculative to support an injunction. See Caribbean Marine Servs. Co., Inc. v. Baldrige, 844

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F.2d 668, 674 (9th Cir. 1988) (mere “[s]peculative injury does not constitute irreparable

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injury sufficient to warrant granting a preliminary injunction”); see also Fed. R. Civ. P. 65(b)

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(movant must demonstrate by specific facts that there is a credible threat of immediate and

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irreparable harm).

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For the above reasons, Plaintiff’s third request for injunctive relief will be denied.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion to
Cease and Desist (Doc. 62).

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(2)

Plaintiff’s Motion to Cease and Desist (Doc. 62) is denied.

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DATED this 19th day of April, 2011.

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