Thomas Joseph Gabba v. Schwarzenegger et al

Filing 13

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, for Failure to State a Claim Under Section 1983; Amended Complaint due by 9/6/2011; ORDER Denying Plaintiff's 12 Motion for Preliminary Injunction signed by Judge Oliver W. Wanger on 08/02/2011. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THOMAS J. GABBA,

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Plaintiff,

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CASE NO. 1:10-cv-00414-OWW-GBC
ORDER DISMISSING COMPLAINT,
WITH LEAVE TO AMEND, FOR FAILURE
TO STATE A CLAIM UNDER SECTION 1983
(Doc. 1)

v.
ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
(Doc. 12)

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THIRTY-DAY DEADLINE
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I.

Procedural History

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Plaintiff Thomas J. Gabba (“Plaintiff”) is a civil detainee involuntarily committed pursuant

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to California’s Sexually Violent Predator Act (“SVPA”), Cal. Welf, & Inst. Code § 6600, et seq., and

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is proceeding in this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff is

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proceeding pro se and in forma pauperis in this action. On March 9, 2010, Plaintiff filed the original

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complaint which is presently before this Court. (Doc. 1). On October 14, 2010, Plaintiff filed a

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motion for injunctive relief. (Doc. 12).

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II.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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‘Under § 1915A, when determining whether a complaint states a claim, a court must accept

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as true all allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.’ Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden

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Hayes, 213 F.3d 443, 447 (9th Cir.2000). ‘Additionally, in general, courts must construe pro se

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pleadings liberally.’ Id. A complaint, or portion thereof, should only be dismissed for failure to state

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a claim upon which relief may be granted “if it is clear that no relief could be granted under any set

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of facts that could be proved consistent with the allegations.” See Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v.

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United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898

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(9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the

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allegations of the complaint in question, and construe the pleading in the light most favorable to the

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plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22

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(1969); Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

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III.

Plaintiff’s Complaint

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A.

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Plaintiff is a civil detainee involuntarily committed pursuant to California’s SVPA and is

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currently detained at Coalinga State Hospital (“CSH”)) in Coalinga, California. In 2009, the

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Department of Mental Health (DMH) passed an emergency regulation which prohibited possession

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of various electronic devices with the capability to connect to a wired and/or wireless

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communications network.1 Cal. Code Regs., tit. 9 § 4350 (2010). Plaintiff does not allege what

Summary of Allegations

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The final regulation was issued in 2010.

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property he owns that is subject to the regulation.

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In the complaint, Plaintiff names former governor Arnold Schwarzenegger, Secretary of the

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Department of Health and Human Services S. Kimberly Belshe, former Director of the California

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Department of Mental Health Stephen Mayberg and Executive Director of Coalinga State Hospital

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Pam Ahlin (“Defendants”) in their official capacities as defendants in this action. Plaintiff seeks

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damages and injunctive relief to prevent the Department of Mental Health from enforcing the new

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regulation which will lead to the confiscation of electronics such as computers and game systems

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from all the patients. (Doc. 1 at 3).

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B.

Case or Controversy Requirement

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“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold

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requirement imposed by Article III of the Constitution by alleging an actual case or controversy.”

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City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665 (1983) (citations omitted);

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Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010); Chandler v. State

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Farm Mutual Auto. Ins. Co., 598 F.2d 1115, 1121-22 (9th Cir. 2010). This requires Plaintiff to

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demonstrate that he has standing to sue by showing (1) an injury-in-fact, (2) causation, and (3) a

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likelihood that the injury will be redressed by a decision in his favor. Human Life of Washington

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Inc., 624 F.3d at 1000 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130

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(1992)) (quotation marks omitted). Related to standing is the doctrine of ripeness, which precludes

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from consideration injuries that are speculative and may never occur. Chandler, 598 F.3d at 1122

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(citation omitted). Ripeness is a question of timing and can be characterized as standing on a

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timeline. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en

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banc) (quotations and citations omitted).

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At the time Plaintiff filed this action, his electronics had not been confiscated pursuant to

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section 4350 and it is unclear when or even if the regulation will be enforced against Plaintiff. The

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mere existence of the regulation does not satisfy the case or controversy requirement, Thomas, 220

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F.3d at 1139 (citation omitted), and therefore, Plaintiff’s claims are unripe and are subject to

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dismissal for lack of subject matter jurisdiction. However, given the passage of time between the

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initiation of this suit and the issuance of the screening order, the Court will permit Plaintiff leave to
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amend in the event that this deficiency is curable. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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IV.

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Preliminary Injunction
“A preliminary injunction is an extraordinary remedy never awarded as a matter of
Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376

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right.”

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(2008)(citation omitted). “A plaintiff seeking a preliminary injunction must establish that

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

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

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in the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded

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upon a clear showing that the plaintiff is entitled to relief.

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omitted)(emphasis added). The Ninth Circuit has made clear that “[T]o the extent that our

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cases have suggested a lesser standard, they are no longer controlling, or even viable.”

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McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010), quoting Am. Trucking

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Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party

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has the burden of proof on each element of the test. Environmental Council of Sacramento

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v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

Id. at 376 (citation

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A federal court is a court of limited jurisdiction. Because of this limited jurisdiction,

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as a threshold and preliminary matter the court must have before it for consideration a “case”

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or “controversy.” Flast v. Cohen, 392 U.S. 83, 88 (1968). If the court does not have a “case”

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or “controversy” before it, it has no power to hear the matter in question. Rivera v. Freeman,

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469 F. 2d 1159, 1162-63 (9th Cir. 1972). “A federal court may issue an injunction if it has

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personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may

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not attempt to determine the rights of persons not before the court.” Zepeda v. United States

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Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added).

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Plaintiff has not met his burden as the moving party. “[A] preliminary injunction is

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an extraordinary and drastic remedy, one that should not be granted unless the movant, by

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a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
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A mandatory

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972 (1997) (quotations and citations omitted) (emphasis in original).

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preliminary injunction, such as that sought by plaintiff in the instant motion, “is subject to

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heightened scrutiny and should not be issued unless the facts and the law clearly favor the

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moving party.” Dahl v. Hem Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). As

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the moving party, it is Plaintiff who bears the burden, and the burden does not shift to

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defendants unless and until plaintiff’s burden has been met.

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Plaintiff has failed to demonstrate that the Court has jurisdiction to hear his claim, and

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has failed to demonstrate how confiscation of electronics would amount to irreparable harm

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that could not be resolved with a remedy post-deprivation. Therefore, the Court, in its

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discretion, will deny the motion for a preliminary injunction without prejudice.

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V.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Plaintiff’s complaint, filed March 9, 2010, is dismissed for failure to state a claim

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upon which relief may be granted (Doc. 1);

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3.

Plaintiff’s motion for injunctive relief, filed October 14, 2010, is DENIED (Doc. 12);

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint; and
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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed for failure to state a claim.IT IS SO ORDERED.

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Dated:
August 2, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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