Tracy Taylor v. Hubbard et al

Filing 106

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 3/25/2013 recommending that 29 , 39 MOTIONS for PRELIMINARY INJUNCTION and/or PROTECTIVE ORDER be denied. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/18/2013.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TRACY TAYLOR,

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CASE NO. 1:10-cv-00404-LJO-BAM PC
Plaintiff,

FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTIONS FOR
PRELIMINARY INJUNCTION AND/OR
PROTECTIVE ORDER

v.

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(ECF Nos. 29, 39)
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SUSAN HUBBARD, et al.,
OBJECTIONS DUE WITHIN TWENTY-ONE
DAYS

Defendants.
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Plaintiff Tracy Taylor (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s

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second amended complaint against Defendant Cate, in his official capacity as Secretary of the

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California Department of Corrections and Rehabilitation, for injunctive relief for violations of the

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Free Exercise Clause of the First Amendment and of the Religious Land Use and Institutionalized

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Persons Act of 2000 (“RLUIPA”); against Defendant Harrington, in his individual capacity and his

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official capacity as Acting Warden at Kern Valley State Prison, for violations RLUIPA and the Free

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Exercise Clause of the First Amendment; and against Defendant Wegman, in her individual capacity,

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for violation of the Free Exercise Clause of the First Amendment.

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Pending before the Court are: (1) Plaintiff’s motion for preliminary injunction and/or

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protective order, filed January 9, 2012 (ECF No. 29); and (2) Plaintiff’s motion for preliminary

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injunction and/or protective order, filed March 23, 2012 (ECF No. 39). Defendants Harrington and

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Wegman opposed the second motion for preliminary injunction on July 16, 2012, and Plaintiff
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replied on August 13, 2012. (ECF Nos. 58, 66.) After filing an answer to the complaint, Defendant

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Cate opposed the motions for preliminary injunction on October 9, 2012, and Plaintiff replied.1

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(ECF Nos. 81, 87.) The matter is deemed submitted pursuant to Local Rule 230(l).

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I.

Motion for Preliminary Injunction and/or Protective Order (ECF No. 29)

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On January 9, 2012, Plaintiff moved for a preliminary injunction against Defendants

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Harrington and Wegman at Kern Valley State Prison to (1) receive from his family and friends, via

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postal services, tobacco products (e.g., loose tobacco, cigarettes, cigars, rolling papers, smoking pipe,

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lighters, matches); (2) possess and use tobacco products; (3) purchase and set up an altar in his cell

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with the following items purchased from the vendor of his choice: altar cloth, holy books of

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Thelema, tarot cards, statuary, Yi Ching, incense, incense sticks, ash catcher, wand, chalices, oils,

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oil diffusers, candles, candle holders, abalone shell, lighter, T.V./radio/c.d. player, religious chanting

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c.d.s, bell, crystals and gemstones. (ECF No. 29, p. 8.)

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“A plaintiff seeking a preliminary injunction must establish 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 the

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

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Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citations

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omitted).

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Here, Plaintiff claims that his religious items were confiscated by custody staff at Calipatria

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State Prison, that Defendant Wegman has refused Plaintiff access to his religious items at Kern

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Valley State Prison and that Defendant Harrington has implemented a policy prohibiting Plaintiff

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from using and possessing tobacco in his cell at Kern Valley State Prison. (ECF No. 29, pp. 2-3, 4.)

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Based on his moving papers, it is unclear whether Plaintiff is seeking preliminary injunctive

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relief against Calipatria State Prison or against Kern Valley State Prison or both. Regardless, what

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is clear from the record is that Plaintiff is no longer incarcerated at either facility. He is currently

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housed at California State Prison, Los Angeles County in Lancaster, California. (ECF No. 82.) A

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preliminary injunction becomes moot if a prisoner is transferred. Andrews v. Cervantes, 493 F.3d

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Plaintiff filed a duplicative reply to Defendant Cate’s opposition on January 22, 2013. (ECF No. 95.) The
duplicative reply is HEREBY DISREGARDED.

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1047, 1053 n. 5 (9th Cir.2007) (citing Johnson v. Moore, 948 F.2d 517, 510 (9th Cir.1991) (per

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curiam)); Holt v. Stockman, 2012 WL 259938, *6 (E.D. Cal. Jan. 25, 2012) (a prisoner’s claim for

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injunctive relief is rendered moot when he is transferred from the institution whose employees he

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seeks to enjoin from harming him).

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However, claims that are “capable of repetition, yet evading review,” are excepted from the

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mootness doctrine. Spencer v Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 988 (1998). A party seeking

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to apply such exception must demonstrate that: (1) the challenged action is too short in duration to

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be fully litigated prior to cessation or expiration; and (2) there is a reasonable likelihood that he will

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be subject to the same action again. Id. In the context of a prisoner's claim for injunctive relief for

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civil rights violations, he must demonstrate a reasonable expectation of being transferred back to the

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institution where the violations occurred. Johnson, 948 F.2d at 519. Here, Plaintiff has not alleged

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any “reasonable expectation” or “clear probability” that he will be transferred back to Kern Valley

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State Prison or to Calipatria State Prison, so his claim for injunctive relief is moot. Darring v.

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Kincheloe, 783 F.2d 874, 876 (9th Cir. 1996).

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For these reasons, the Court recommends that Plaintiff's motion for preliminary injunction,

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filed January 9, 2012, be denied as moot.

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II.

Motion for Preliminary Injunction and/or Protective Order (ECF No. 39)

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On March 9, 2012, Plaintiff moved for a preliminary injunction to (1) receive from his family

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or friends, via postal services, tobacco products (e.g. loose tobacco, cigarettes, cigars, rolling papers,

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smoking pipe, lighters, matches); (2) possess and use tobacco products; (3) purchase the religious

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items he needs for his religious altar; (4) set up and maintain a religious altar in his cell with the

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following items: altar cloths, holy books of Thelema, troth tarot cards, statuary, Yi ching, incense,

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incense sticks/cones, ash catcher, wands, chalices, oils, oil diffuser, colognes, perfumes, candles,

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candle holders, abalone shell, lighters, radio/cd player with speakers that play out loud, bell, crystals,

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and gemstones; and (5) wear charms and charm bags. (ECF No. 39, p. 10.)

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In his moving papers, Plaintiff reported that he had been transferred out of Kern Valley State

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Prison to Calipatria State Prison, but he had been brought back to Kern Valley State Prison in

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February 2010 for a court trial and will remain there until completion of his trial in August 2012.
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(ECF No. 39, p. 9.) Plaintiff claims that his religious items were confiscated by prison officials at

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Calipatria State Prison. (ECF No. 39, p. 9.) As with his prior motion, Plaintiff’s moving papers do

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not clearly indicate whether he seeks injunctive relief related to the confiscating of his religious items

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at Calipatria State Prison or regarding the confiscation and/or use of religious items use at Kern

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Valley State Prison. In his replies, Plaintiff appears to indicate that he seeks a preliminary injunction

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related to confiscation of his items at Calipatria State Prison, receipt of religious items directly from

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his family, use and possession of tobacco products and the ability to set up and maintain a religious

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altar with certain items. (ECF No. 66, pp. 4, 9; ECF No. 87, pp 2, 4.) Nonetheless, as with his prior

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motion, Plaintiff has been transferred to California State Prison, Los Angeles County in Lancaster

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and thus his request for preliminary injunctive relief against officials at Kern Valley State Prison or

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at Calipatria State Prison is moot. Andrews, 493 F.3d at 1053 n. 5; Knows His Gun v. Montana, 866

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F.Supp.2d 1235, 1242-43 (D. Mont. 2012) (in the context of RLUIPA cases, when a prisoner is

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transferred to another facility, his claims for injunctive or declaratory relief against the transferring

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facility becomes moot). Plaintiff has not alleged any “reasonable expectation” or “clear probability”

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that he will be transferred back to Kern Valley State Prison or to Calipatria State Prison. Darring,

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783 F.2d at 876.

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While it is clear that Plaintiff cannot seek to enjoin officials at prisons where he is no longer

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incarcerated, Plaintiff has asserted claims against Defendant Cate, in his official capacity as Secretary

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of the California Department of Corrections and Rehabilitation (“CDCR”).2 In seeking a preliminary

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injunction, Plaintiff claims that CDCR’s policies do not allow him to purchase religious artifacts

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from the vendors of his choice and do not allow his family to mail him tobacco products personally

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even though CDCR does not have a vendor that sends tobacco products that Plaintiff requires. (ECF

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No. 66, p. 4; ECF No. 87, pp. 4, 15.) In sum, Plaintiff complains that CDCR’s policy forces him “to

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purchase his religious items only from departmentally locally-approved vendors.” (ECF No. 66, p.

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8.) He also complains that he must seek re-approval of any religious artifacts he possesses when he

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transfers to another facility. (ECF No. 87, p. 15.)

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Matthew Cate is no longer the Secretary of CDCR. J. Beard has been appointed to take his place. (ECF

No. 97.)

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In relevant part, the CDCR policy at issue states as follows:

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(i) Inmates shall be allowed special purchases of authorized personal property items
from locally-approved special purchase vendors . . . . The institution head or
designated staff shall ensure approved vendor catalogs and order forms are available
to inmates who qualify. Special purchases shall only include the following:
...
(4) Religious Items, as listed within the Religious Property Matrix.

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15 Cal. Code Regs. § 3190(i). There is no indication in any of the moving papers that Plaintiff is

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unable to obtain approved religious items at his current facility or that there is no locally-approved

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special purchase vendor for religious items at his current facility. Additionally, there is no indication

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that CDCR’s regulations operate as a complete ban on Plaintiff’s receipt of approved religious items.

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Moreover, to the extent Plaintiff seeks a preliminary injunction at California State Prison,

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Los Angeles County, Plaintiff has failed to meet the relevant standard for such an injunction to issue.

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As noted above, a plaintiff seeking a preliminary injunction must establish, among other things, that

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he is likely to suffer irreparable harm in the absence of preliminary relief. Winter, 555 U.S. at 20.

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In this instance, Plaintiff has not named any officials at California State Prison, Los Angeles County

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in his complaint, and he has not submitted evidence of real, immediate, irreparable harm at

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California State Prison, Los Angeles County. In short, Plaintiff has failed to provide any evidence

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that he is currently being subjected to a violation of his rights. Thus, there does not appear to be any

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harm, much less irreparable harm, that Plaintiff will suffer if his request for injunctive relief is

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denied at this time.

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For these reasons, the Court recommends that Plaintiff’s motion for preliminary injunction,

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filed on March 23, 2012, be denied.

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III.

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Conclusion and Recommendations
Accordingly, it is HEREBY RECOMMENDED as follows:

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Plaintiff’s motion for preliminary injunction and/or protective order, filed on
January 9, 2012, be DENIED; and

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Plaintiff’s motion for preliminary injunction and/or protective order, filed on
March 23, 2012, be DENIED.

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These findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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twenty-one (21) days after being served with these findings and recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.

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Dated:
10c20k

March 25, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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