Rodrigues v. Ryan et al

Filing 173

ORDER that the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Preliminary Injunction (Doc. 129 ), and the Motion is denied. Signed by Judge David G Campbell on 9/6/16.(KGM)

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1 2 SKC WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Anthony L. Rodrigues, 10 11 12 No. CV 14-08141-PCT-DGC (ESW) Plaintiff, v. ORDER Charles L. Ryan, et al., 13 Defendants. 14 15 Plaintiff Anthony L. Rodrigues, who is currently confined in the Red Rock 16 Correctional Center (RRCC) in Eloy, Arizona, has filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983. Before the Court is “Plaintiff’s Motion for Emergency 18 Temporary Restraining Order and/or Preliminary Injunction” (Doc. 129). The Court will 19 construe Plaintiff’s filing as a motion for preliminary injunction, and deny it.1 20 I. Background 21 This action arises from alleged constitutional and Americans with Disabilities Act 22 (ADA) violations that occurred while Plaintiff was incarcerated at the Arizona State 23 Prison (ASP)-Kingman. (Doc. 15.) On screening pursuant to 28 U.S.C. § 1915A(a), the 24 Court determined that Plaintiff stated Eighth Amendment and ADA claims against 25 Defendants Charles L. Ryan, Director of the Arizona Department of Corrections (ADC); 26 27 28 1 Plaintiff’s Motion does not meet the standards for a Temporary Restraining Order, which require, among other things, that “the facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b). 1 R. Scott Marquardt, President and CEO of Management Training Corporation; Tara R. 2 Diaz, ADC Contract Beds Bureau Director; and Pamela Rider, Warden at ASP- 3 Kingman’s Hualapai Unit, and directed these Defendants to answer the claims against 4 them. (Doc. 16.) The Court dismissed the remaining claims and Defendants. Id. 5 The Court subsequently dismissed all of Plaintiff’s ADA claims and his Eighth 6 Amendment deliberate indifference claim against Marquardt. (Doc. 104.) The remaining 7 claims are Plaintiff’s Eighth Amendment deliberate-indifference claims against Ryan, 8 Diaz, and Rider based on Plaintiff’s assignment to a two-man bunk near where inmates 9 smoked, despite ADC policies prohibiting indoor smoking, resulting in Plaintiff’s 10 hospitalization at least twice due to the effects of second-hand smoke. 11 After filing this action, Plaintiff was transferred to his current location at RRCC. 12 While at this new location, Plaintiff filed a “Motion for Preliminary Injunction and 13 Emergency Temporary Restraining Order” in which he sought a bunk reassignment due 14 to alleged exposure to second-hand smoke at RRCC. 15 restrictions on transfer to another prison and access to legal materials. (Id.) The Court 16 denied that Motion for lack of jurisdiction on the ground that, while some of Plaintiff’s 17 alleged issues were factually similar to those alleged in his complaint, “mere similarity of 18 potential future claims does not authorize the Court to order relief outside the scope of 19 the current action.” (Doc. 104.) 20 II. (Doc. 21.) He also sought Motion for Injunctive Relief 21 Plaintiff asks the Court “to enjoin and restrain” Defendant Ryan “to cure 22 Defendants’ immediate abuses of Plaintiff’s federally-protected right to due process and 23 equal protection of the law guaranteed to the Plaintiff by the Fourteenth Amendment to 24 the United States Constitution.” (Doc. 129 at 1.) Plaintiff alleges that on May 24, 2016, 25 he began an ADC-mandated Cognitive Restructuring Personal Development Program at 26 RRCC. (Id. at 2.) As a result, he is required “to actively participate and complete a 27 variety of in and out of classroom assignments for a period of six weeks,” and failure to 28 do so will subject him to sanctions, including loss of earned incentive privileges. (Id.) -2- 1 Plaintiff alleges that this program is “disrupting ever[y] facet of [his] time sensitive 2 discovery and trial preparation, prejudicing the Plaintiff” in this action. (Id.) On May 27, 3 2016, Plaintiff advised Correctional Officer (CO) III Bolding that he did not want to have 4 to pursue an emergency protective order to obtain a “temporary waiver” from the class, 5 and Bolding responded by saying: “You’ll just be moved from this facility.” (Id.)2 6 Bolding’s response caused Plaintiff to experience an acute attack of angina, prompting 7 Bolding to tell him to take a seat and causing Plaintiff to have to take a nitroglycerin 8 tablet in addition to the nitroglycerin patch he already wears to manage his cardiac issues. 9 (Id. at 2-3.) That same day, Bolding delivered more than 800 pages of discovery 10 documents to Plaintiff and advised him that she had spoken to her immediate supervisor, 11 CO IV Hendricks, who reaffirmed that Plaintiff’s participation in the Program was 12 mandatory. (Id.) CO III Westmoreland, who was also present, told Plaintiff his medical 13 problems were self-inflicted and he should take up his programming issues with Medical 14 by filing a health needs request (HNR). (Id.) Westmoreland offered to deliver an HNR 15 to Medical personally to expedite the process. (Id.) 16 Plaintiff asks the Court to “immediately enjoin and restrain” Ryan and his 17 employees (1) “from mandating Plaintiff’s participation in any and all ADC personal 18 development programming and activities during the pendency of the instant action,” 19 (2) “from transferring or removing the Plaintiff from [his] present place of incarceration 20 without first seeking District Court consent,” (3) from taking what could be inferred as 21 retaliatory actions against him and anyone providing him material or testimonial support 22 in this action, and (4) from interfering with Plaintiff’s right to compulsory discovery by 23 “seizing Plaintiff’s trial preparation material or in any manner frustrating or impeding” 24 his constitutionally protected due process and equal protection rights. (Id. at 3-4.) 25 2 26 27 28 The context and factual circumstances are less than clear from Plaintiff’s Motion. Defendants provide evidence that Bolding teaches the Cognitive Restructuring Class at RRCC. (Doc. 142 at 3.) In accord with Plaintiff’s allegations, Bolding testifies that Plaintiff stopped her while she was walking with another Detention Officer to ask for a waiver from the class due to his pending litigation, and Plaintiff stated that unless he got a waiver, he would have to file a temporary restraining order against her. (Doc. 142-1 ¶¶ 23-29.) -3- 1 III. Legal Standard 2 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 3 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 4 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 5 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 6 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must show that (1) he 7 is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an 8 injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the 9 public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are 10 ‘serious questions going to the merits’—a lesser showing than likelihood of success on 11 the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 12 sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell 13 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance 14 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this variant 15 of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of 16 one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072. 17 Regardless of which standard applies, the movant “has the burden of proof on each 18 element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 19 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a 20 mandatory preliminary injunction, which should not be granted “unless the facts and law 21 clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 22 (9th Cir. 1986) (citation omitted). The Prison Litigation Reform Act imposes additional 23 requirements on prisoner litigants who seek preliminary injunctive relief against prison 24 officials and requires that any injunctive relief be narrowly drawn and the least intrusive 25 means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of 26 the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000). 27 /// 28 /// -4- 1 IV. Discussion 2 Defendants argue that, to the extent Plaintiff’s Motion addresses events that 3 allegedly occurred at RRCC, not ASP-Kingman, it should be denied because the relief he 4 seeks as to mandatory programming, restrictions on transfers, and access to his legal 5 materials is outside the scope of the operative complaint. (Doc. 142 at 5-6.)3 They 6 further argue that Plaintiff fails to make the necessary showings for injunctive relief 7 because he fails to show that (1) he is likely to succeed on the merits in this action, (2) he 8 is likely to suffer irreparable harm absent an injunction, (3) the balance of the equities 9 tips in his favor, and (4) an injunction is in the public interest. (Doc. 142 at 5-10.) 10 Defendants are correct that the injunctive relief Plaintiff seeks on mandatory class 11 participation and other issues at RRCC is entirely separate from the relief he seeks in his 12 underlying Complaint. The Ninth Circuit has held that “absent [a] relationship or nexus” 13 between the preliminary injunction and the underlying complaint, “the district court lacks 14 authority to grant the relief requested.” Pac. Radiation Oncology, LLC v. Queen’s Med. 15 Ctr., 810 F.3d 631, 636 (9th Cir. 2015). This Court has recognized a narrow exception to 16 this rule, however, when the requests for injunctive relief are related to a plaintiff’s 17 access to the district court in pending litigation. Prince v. Schriro, CV 08-1299-PHX- 18 SRB, 2009 WL 1456648, at *4 (D. Ariz. May 22, 2009) (citing Diamontiney v. Borg, 918 19 F.2d 793, 796 (9th Cir. 1990)). 20 Plaintiff alleges that mandatory participation in ADC’s Cognitive Restructuring 21 Program interferes with his discovery and trial preparation in this action. (Doc. 129 at 2.) 22 He requests that the Court enjoin Ryan and those acting under Ryan’s authority from 23 mandating his participation in this program and any other programs or activities, 24 specifically “during the pendency of the instant action.” (Id. at 3.) Plaintiff’s other 25 26 27 28 3 Defendants submitted two responses to the instant Motion because they have different counsel representing them as to Plaintiff’s alleged issues at RRCC and ASPKingman. (Doc. 141 at 1-2, Doc. 142 at 1, n. 1.) In the separate response submitted by ASP-Kingman counsel, Defendants argue that, to the extent the Motion addresses events that allegedly occurred at ASP-Kingman, it should be denied because the injunctive relief Plaintiff seeks is completely separate from those alleged occurrences. (Doc. 141 at 2-3.) -5- 1 requests for relief likewise all relate in some way to his ability to litigate his current 2 claims. 3 restrictions on transfers from his current location relates, in part, to his asserted need to 4 give his “immediate, undivided attention” to this litigation. (Id. at 2.) His requests that 5 the Court enjoin Ryan and his subordinates from taking retaliatory action against him, or 6 against anyone providing him “material or testimonial support,” or from interfering with 7 his right to discovery by “seizing Plaintiff’s trial preparation materials,” are also related 8 to his ability to pursue this case. (See id. at 4.) Moreover, Plaintiff seeks an injunction as 9 to ADC policies and the actions of personnel allegedly under Ryan’s control, and Ryan is Although not clear from the Motion, it appears that Plaintiff’s request for 10 a party to this action. 11 Defendants argue, that Plaintiff’s requests for injunctive relief should be denied as being 12 “wholly outside” the issues presented in this action. (See Doc. 142 at 6 (quoting De 13 Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945).) Under these circumstances, the Court is not persuaded, as 14 The Court will nonetheless deny the Motion because Plaintiff’s allegations of 15 injury are too vague and speculative to show he is currently suffering or is likely to suffer 16 irreparable harm absent the Court’s intervention. See Conn. v. Mass., 282 U.S. 660, 674 17 (1931) (an injunction is only appropriate “to prevent existing or presently threatened 18 injuries”); Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F. 2d 668, 674-675 (9th 19 Cir. 1988) (speculative injury does not constitute irreparable harm sufficient to warrant 20 granting a preliminary injunction). 21 programming at RRCC is “disrupting ever[y] facet of [his] time sensitive discovery and 22 trial preparation, prejudicing the Plaintiff” in this action. (Doc. 129 at 2.) But he 23 provides no facts about how often he must attend class or the types of assignments he 24 must complete.4 Nor does he provide any facts about how these obligations are impeding 25 his ability to complete particular time-sensitive deadlines in this action. 26 Plaintiff asks the Court to enjoin transfers from his current location, retaliation against Plaintiff broadly asserts that his mandatory Similarly, 27 28 4 Defendants provide evidence that the class meets one time a week for two hours and requires twenty minutes a week of homework. (Doc. 142 at 3.) -6- 1 him, and interference with discovery, but he provides no facts to show that he is currently 2 experiencing or likely to experience any of these things. Plaintiff merely states that he 3 incorporates “all papers, readings, and motions which are part of the record in the above 4 case.” (Doc. 129 at 2, 4.) This is not sufficient. As the movant, Plaintiff “must do more 5 than merely allege imminent harm sufficient to establish standing; a plaintiff must 6 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive 7 relief.” Caribbean, 844 F.2d at 674 (internal citations omitted). In addition, a motion for 8 preliminary injunction, including the likelihood of irreparable harm, must be supported 9 by “[e]vidence that goes beyond the unverified allegations of the pleadings.” Fidelity 10 Nat’l Title Ins. Co. v. Castle, C 11-0896 SI, 2011 WL 5882878, at *3 (N.D. Cal. Nov. 23, 11 2011) (internal citation omitted).5 12 Plaintiff’s attempts to provide additional evidence in his reply do not cure these 13 deficiencies. Plaintiff attaches a copy of ADC Department Order 809 pertaining to 14 earned incentives, a printout of his “Inmate Time Computation,” and affidavits of other 15 inmates attesting to his angina attack. (Doc. 151 at 5-17.) But he fails to connect this 16 evidence to any of the issues raised in his Motion. As to his purported discovery 17 concerns, Plaintiff’s own allegations show he was provided over 800 pages of discovery 18 material, and he does not allege that anything was kept from him. (Doc. 129 at 3.) As to 19 his angina attack that allegedly resulted from his conversation with Bolding seeking a 20 waiver, Plaintiff alleges that CO III Westmoreland advised him at the time to address his 21 programming concerns with Medical and even offered to deliver an HNR for Plaintiff to 22 expedite the process. (Id.) Plaintiff has not shown that he sought help from Medical on 23 this issue or for any medical needs related to this incident. Moreover, Defendants 24 provide evidence that Plaintiff has never filed any grievances to attempt to resolve his 25 programming issue, though the process for doing so is available to him. (Doc. 142-2 ¶¶ 26 5 27 28 Although the pleadings in this action include Plaintiff’s verified Complaint, which may be used as evidence, this does not help. Plaintiff does not point to any sworn statements in the Complaint to support his allegations of harm. Moreover, as already noted, the allegations in the Complaint pertain solely to actions that took place at ASPKingman, not to the harm Plaintiff allegedly faces at RRCC. -7- 1 4-6, 41.) On this record, Plaintiff fails to show he is likely to suffer irreparable harm 2 absent injunctive relief. Given this shortcoming in Plaintiff’s motion, the Court need not 3 address the other requirements for preliminary injunctive relief. 4 5 6 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion for Preliminary Injunction (Doc. 129), and the Motion is denied. Dated this 6th day of September, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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