Bryant v. Gallagher et al

Filing 20

ORDER DISMISSING Certain Claims and DENYING Plaintiff's 19 Motion For a Preliminary Injunction, signed by Magistrate Judge Sandra M. Snyder on 8/15/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN DARNELL BRYANT,

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Plaintiff,

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CASE NO. 1:11-cv-00446-SMS PC
ORDER DISMISSING CERTAIN CLAIMS AND
DENYING PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION

v.
GALLAGHER, et al.,

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(ECF Nos. 18, 19)
Defendants.
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I.

Procedural History

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Plaintiff Kevin Darnell Bryant (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on March 17, 2011.

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The complaint was screened and on June 17, 2011, an order issued requiring Plaintiff to either file

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an amended complaint or notify the Court of his willingness to proceed only on the claims found to

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be cognizable. (ECF No. 15.) On June 22, 2011, an order issued denying Plaintiff’s motions for

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injunctive relief filed March 17, April 8, May 2, and June 9, 2011. (ECF No. 16.) Based upon the

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allegations in Plaintiff’s motions for injunctive relief, on June 22, 2011, an order issued directing

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the Clerk’s Office to serve a courtesy copy of the order denying Plaintiff’s motions for injunctive

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relief upon the warden. (ECF No. 17.) Currently pending before the Court is the first amended

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complaint filed July 5, 2011, and an emergency motion for injunctive relief filed on August 11, 2011.

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(ECF Nos. 18, 19.)

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II.

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Screening Requirement
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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) and is incarcerated at Kern Valley State Prison. Plaintiff alleges that on June 7, 2010,

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he wrote a grievance against Defendant Gallagher. After Defendant Gallagher read the grievance

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he told Plaintiff that he was going to tell the inmate porters and reps that they would be locked down

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and it was Plaintiff’s fault and that Defendant Gallagher would have the inmates “get” him. (First

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Amend. Compl. 4, ECF No. 18.) Defendant Romero and Gallagher were sitting together and said

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they were going to have Plaintiff “handled.” (Id. at 5.)

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The following day, Defendant Romero was in the control booth and he told Plaintiff to come

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out of his cell to go to work. Plaintiff saw some inmates at a table in the living area. While

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Defendant Romero was watching from the control booth, one of the inmates called Plaintiff over.

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The inmate said that Defendant Gallagher had told him what Plaintiff had said and that Plaintiff

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better keep his mouth shut and not do anything to mess things up for the inmate porters. Plaintiff

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was then hit from the side and attacked by the inmates. As Plaintiff was being attacked, he looked

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up and saw Defendant Romero watching. Defendant Romero did not activate any alarms or do

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anything to stop the inmates from attacking Plaintiff. Plaintiff also saw Defendant Gallagher in the

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day room office watching. Plaintiff could hear Defendant Gallagher and Romero talking about how
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they had planned the attack. As a result of the attack Plaintiff’s right hand and elbow were fractured

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and his right leg was broken with the bone sticking out of the skin. (Id.)

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Plaintiff got up and hopped to a bench. Plaintiff asked Defendant Romero to call a medic

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and tell them that his leg was broken. Defendant Romero refused to call a medic and told Plaintiff

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to stay on the bench until the pill nurse came in three to four hours. Plaintiff showed Defendant

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Romero the broken leg with the bone sticking out of it and Defendant Romero still refused to call

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for medical staff. (Id.)

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Plaintiff sat on the floor in front of his cell attempting to put the bone back into place so that

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he could walk to the medical clinic. At Plaintiff’s request, Defendant Romero opened Plaintiff’s cell

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so he could get his walker. Plaintiff got his walker and hobbled to the medical clinic where

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arrangements were made to take him to the hospital. (Id. at 6.)

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Plaintiff is seeking compensatory and punitive damages and injunctive relief requiring that

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assault and battery charges be referred to the District Attorney for criminal prosecution and an order

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directing the CDCR to provide Plaintiff “with full disclosure of all surety bonding info held by

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CDCR and KVSP covering these types of injuries and incidents.” (Id. at 3.)

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Plaintiff’s complaint states a cognizable claim against Defendant Romero for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants

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Gallagher and Romero for conspiracy, retaliation in violation of the First Amendment, and failure

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to protect in violation of the Eighth Amendment.

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III.

Injunctive Relief

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

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Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff

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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is

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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

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in his favor, and that an injunction is in the public interest.” Id. at 374 (citations omitted). An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376

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(citation omitted) (emphasis added).

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Federal courts are courts of limited jurisdiction and in considering a request for preliminary
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injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before

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it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660,

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1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc.,

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454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982). If the Court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id. Requests for prospective

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relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which

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requires that the Court find the “relief [sought] is narrowly drawn, extends no further than necessary

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to correct the violation of the Federal right, and is the least intrusive means necessary to correct the

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violation of the Federal right.”

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In his first amended complaint Plaintiff requests an injunction requiring the warden or CDCR

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to refer charges to the District Attorney for criminal prosecution and provide surety bond

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information. The claims that have been found to be cognizable in this action do not provide

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jurisdiction to allow the Court to order the warden or CDCR to grant the relief requested.1 18 U.S.C.

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§ 3626(a)(1)(A); Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149-50 (2009) (citation

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omitted) Price v. City of Stockton, 390 F.3d 1105, 1112 (9th Cir. 2004). Accordingly, Plaintiff’s

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claim for injunctive relief is not cognizable.

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Additionally, Plaintiff’s motion for emergency injunctive relief states that his life is in danger

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as Correctional Officer Castellanos tried to pay some Mexican inmates to stab Plaintiff. Plaintiff

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alleges that Sergeant Rivera and Captain Henderson are covering up this conduct. Plaintiff alleges

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that this is in retaliation for his filing this lawsuit and requests the Court to contact CDCR and notify

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Director Cate and the Office of Internal Affairs. (Emergency Motion 1, ECF No. 19.)

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To the extent Plaintiff believes he is in danger, he has other avenues of relief available to

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him, including filing a petition for writ of habeas corpus in state court. E.g., In re Estevez, 83

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Cal.Rptr.3d 479, 491 (Cal. Ct. App. 2008). The issue is not that Plaintiff’s allegations are not

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serious or that Plaintiff is not entitled to relief if sought in the proper forum. The issue is that this

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In addition, CDCR itself is immune from suit. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147
(9th Cir. 2007).

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action cannot be used by Plaintiff obtain the relief he seeks. The seriousness of Plaintiff’s

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allegations concerning feared impending harm cannot and do not overcome what is a jurisdictional

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bar. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998) (“[The] triad of injury in

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fact, causation, and redressability constitutes the core of Article III’s case-or-controversy

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requirement, and the party invoking federal jurisdiction bears the burden of establishing its

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existence.”)

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IV.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

This action shall proceed on the first amended complaint on Plaintiff’s claims against

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Defendant Romero for deliberate indifference to serious medical needs in violation

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of the Eighth Amendment; and against Defendants Gallagher and Romero for

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conspiracy, retaliation in violation of the First Amendment, and failure to protect in

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violation of the Eighth Amendment;

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2.

Plaintiff’s claims for injunctive relief are dismissed, with prejudice;

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3.

Plaintiff’s motion for injunctive relief, filed August 11, 2011, is HEREBY DENIED,

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with prejudice, for lack of jurisdiction.

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IT IS SO ORDERED.

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Dated:
icido3

August 15, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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