Smith v. Schwarzenegger et al

Filing 105

ORDER GRANTING Defendants' Motion to Strike Plaintiff's Sur-Reply 104 ; ORDER DENYING Plaintiff's Declaration in Support of Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction 85 , signed by District Judge Susan R. Bolton on 9/12/13. (Hellings, J)

1
2
NOT FOR PUBLICATION

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8

FRESNO DIVISION

9
10

Michael Lenoir Smith,
Plaintiff,

11
12

v.

13
Arnold Schwarzenegger, et al.,
14
Defendants.
15

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 1-07-1547-SRB
ORDER

16
17

At issue are Plaintiff’s Declaration in Support of Plaintiff’s Motion for Temporary

18

Restraining Order and Preliminary Injunction, which is considered as a Motion for

19

Preliminary Injunction (“Pl.’s Mot.”), and Defendants’ Motion to Strike Plaintiff’s Sur-Reply

20

(“Defs.’ Mot.”) (Doc. 85, Pl.’s Mot.; Doc. 104, Defs.’ Mot.).

21

I.

BACKGROUND

22

Plaintiff, proceeding pro se, is an inmate incarcerated in the custody of the California

23

State Prison, Corcoran. Plaintiff has filed a Fourth Amended Complaint asserting a violation

24

of civil rights under 42 U.S.C. § 1983. (Doc. 64, Civil Rights Complaint by a Prisoner

25

(“Fourth Am. Compl.”).) Plaintiff alleges that in March 2006 he was transferred to the

26

Pleasant Valley State Prison (“PVSP”) but that he was not notified that the prison was

27

located in an area known as endemic for contracting coccidioidomycosis (cocci), also known

28

as valley fever. (Id. at 5.) Plaintiff contends that he filed grievances asserting that he was

1

being exposed to contracting valley fever and requesting a transfer out of the San Joaquin

2

Valley, that prison officials either failed to respond or ignored his grievances, and that he

3

now has contracted valley fever. (Id. at 5, 8, 10; Pl.’s Mot. ¶¶ 2, 4; Doc. 85, Pl.’s Mem. In

4

Supp. of Mot. for Preliminary Injunction (“Pl.’s Mem.”), Ex. A, Coccidioidal Serology

5

Report; Ex. D, Inmate/Parolee Appeal Form.) Plaintiff asserts a violation of the Eighth

6

Amendment claiming that Defendant prison officials were aware of the severe risk to his

7

health by housing him in the facility but acted with deliberate indifference to the risk and his

8

medical needs by failing to transfer him. (Fourth Am. Compl. at 8-12.)

9

II.

LEGAL STANDARDS AND ANALYSIS

10

A.

11

After Defendants filed their Opposition to Plaintiff’s Motion for Temporary

12

Restraining Order and Preliminary Injunction, Plaintiff filed a Reply to Defendants’

13

Opposition (“Pl.’s Reply”) on August 19, 2013 and a Supplemental Reply to Plaintiff’s Reply

14

to Defendants’ Opposition to Plaintiff’s Motion for T.R.O. and Preliminary Injunction (“Pl.’s

15

Supplemental Reply”) on August 26, 2013. (Doc. 101, Pl.’s Reply; Doc. 102, Pl.’s

16

Supplemental Reply.) Defendants move to strike Plaintiff’s Supplemental Reply, which they

17

refer to as a “sur-reply,” because it is not an authorized filing. (Defs.’ Mot. at 1-2.)

Defendants’ Motion to Strike

18

Local Rule 230(l) of the Eastern District of California authorizes in prisoner actions

19

the filing of a motion, an opposition, and a reply. A supplemental reply is not authorized by

20

the Court’s Local Rules or the Federal Rules of Civil Procedure. Defendants’ Motion to

21

Strike is granted.

22

B.

23

Rule 65(a) of the Federal Rules of Civil Procedure provides that the court may issue

24

a preliminary injunction. “A plaintiff seeking a preliminary injunction must establish that

25

he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

26

of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

27

in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Plaintiff’s Motion for a Preliminary Injunction

28
-2-

1

In moving for a preliminary injunction, Plaintiff contends that valley fever is a

2

lifelong incurable disease and that, as an African American, he is susceptible to contracting

3

the disease in its most serious and fatal form. (Pl.’s Mot. ¶¶ 9, 11-13.) Plaintiff contends that

4

by maintaining his confinement in the San Joaquin Valley prison facility, prison officials are

5

attempting to murder him. (Id. ¶ 14.) Plaintiff seeks a preliminary injunction that directs

6

prison officials to transfer him out of the San Joaquin Valley prison facility to insure that he

7

is not reinfected with the more serious form of the disease. (Pl.’s Mot. ¶ 1; Pl.’s Mem. at p.

8

2.)

9

Defendants argue that a preliminary injunction should not issue because Plaintiff

10

cannot show irreparable harm. (Doc. 92, Defs.’ Opp’n to Pl.’s Mot. at 2-3.) Defendants

11

contend that individuals with a prior history of coccidioidomycosis are immune to

12

subsequent infection and are not in need of placement at another facility. (Id.)

13
14

Plaintiff responds that he has hepatitis C and cannot receive treatment for the valley
fever disease. (Pl.’s Reply at 3.)

15

Defendants refer to the Order entered in Plata v. Brown, No. C01-1351 TEH, N. D.

16

Cal. June 24, 2013 (“Plata Order”), in which the district court considered the relocation and

17

placement of inmates at two California prison facilities, including PVSP, that have

18

exceedingly high rates of infection. The district court ruled that persons subject to being

19

exempted from transfer included inmates who have been previously diagnosed with the

20

disease:

21

26

‘Individuals with a prior history of cocci are immune to subsequent infection,’
Expert Report at 2, so any such individuals need not be transferred or excluded
from the affected institutions. However, time spent in the hyperendemic region
alone is not a sufficient criteria because ‘without a skin test, it is impossible to
accurately determine if a specific individual has acquired immunity. For this
reason, using time as a criterion for exclusion is not safe.’ Id. at 12. If a
licensed skin test becomes available, the Receiver should consider using that
test as part of the exclusionary criteria. Until such a test is available, the only
individuals who would otherwise be subject to the exclusion policy who
should be exempt from transfer or exclusion are those who have previously
been diagnosed with cocci.

27

(Plata Order at 23.) The Plata Order states that “[i]nmates who have previously been

28

diagnosed with cocci shall be exempt from exclusion.” (Id. at 24.) Based on the Plata Order,

22
23
24
25

-3-

1

and as a person who has been diagnosed with valley fever, Plaintiff is not subject to transfer

2

to another facility. Plaintiff has not made a sufficient showing for the issuance of a

3

preliminary injunction.

4

III.

5
6

CONCLUSION
Plaintiff’s Supplemental Reply is not an authorized filing and is stricken from the

record. Plaintiff has not shown sufficient reasons for a preliminary injunction.

7

IT IS ORDERED granting Defendants’ Motion to Strike Plaintiff’s Sur-Reply (Doc.

8

104). The Clerk shall strike Plaintiff’s Supplemental Reply to Plaintiff’s Reply to

9

Defendants’ Opposition to Plaintiff’s Motion for T.R.O. and Preliminary Injunction (Doc.

10

102).

11

IT IS FURTHER ORDERED denying Plaintiff’s Declaration in Support of

12

Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction which has

13

been considered as a Motion for Preliminary Injunction (Doc. 85).

14
15

DATED this 12th day of September, 2013.

16
17
18
19
20
21
22
23
24
25
26
27
28
-4-