Bowell v. Diaz et al

Filing 25

FINDINGS and RECOMMENDATIONS Denying Plaintiff's Motion as Supplemented for Temporary Injunction and Emergency Preliminary Injunction, re 19 , 21 , 22 , signed by Magistrate Judge Michael J. Seng on 8/13/13. Referred to Judge Ishii; Fourteen Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES EDWARD BOWELL,

Case No. 1:11-cv-01350-AWI-MJS (PC)

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Plaintiff,
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v.
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A. DIAZ, et al.,

FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION AS
SUPPLEMENTED FOR TEMPORARY
INJUNCTION AND EMERGENCY
PRELIMINARY INJUNCTION

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Defendants.

(ECF Nos. 19, 21, 22)

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FOURTEEN DAY OBJECTION DEADLINE
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I.

PROCEDURAL HISTORY
Plaintiff James Edward Bowell is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed August 15, 2011 pursuant to 42 U.S.C. § 1983. (ECF

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No. 1.) This matter proceeds on Plaintiff’s Eighth Amendment failure to protect claim

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against Defendants Diaz and Rodriguez. (ECF No. 17.)
Pending before the Court is Plaintiff’s motion for a temporary restraining order and

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emergency preliminary injunction (ECF No. 19) as supplemented (ECF Nos. 21, 22).

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Plaintiff requests the Court to order that (1) Corcoran prison guards return eight boxes of

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legal materials allegedly disposed of on February 8, 2013, or provide an explanation if

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disposed of, (2) the FBI file criminal charges against Corcoran prison guards, (3) all

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retaliation against him stop, and (4) he be housed in a single cell for his safety.

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II.

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ARGUMENT
Plaintiff is currently confined at High Desert State Prison (HDSP). He complains that
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during his prior incarceration at Corcoran State Prison (CSP), correctional officer Torres

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conspired with litigation coordinator Kimbrell, appeals coordinators Cano, Campbell and

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Panu, correctional officers Cardenas, Gonzalez and Berta, and correctional sergeant

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Childress to destroy eight boxes of legal documents and materials stored at the facility.

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Torres threatened Plaintiff he was “capable of having [Plaintiff] put in the ground.” (ECF 19

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at 12.) Torres conspired with correctional officer Huewe to have Plaintiff attacked by

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another inmate. Plaintiff claims the eight boxes included evidence against the Defendants

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in this action.
Plaintiff also requests an emergency order directing CSP warden Gipson to house

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Plaintiff in a single cell for his safety. He argues this is necessary given previous attacks by

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cellmates, alleged retaliation and failure to protect by Defendants, and fraud and deceit by

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CSP nurse Dackerman and the Attorney General.

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III.

ANALYSIS

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A.

Legal Standard

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Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,

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never awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 22

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(2008).

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To prevail, the party seeking injunctive relief must show either “(1) a likelihood

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of success on the merits and the possibility of irreparable injury, or (2) the existence of

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serious questions going to the merits and the balance of hardships tipping in [the

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moving party's] favor.” Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc.,

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762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula

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International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); see City of Los Angeles v. Lyons,

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461 U.S. 95, 101-102 (1983) (plaintiff must show “real and immediate” threat of injury).

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Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of

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the Prison Litigation Reform Act (“PLRA”), which requires that the court find the “relief

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[sought] is narrowly drawn, extends no further than necessary to correct the violation of

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the federal right, and is the least intrusive means necessary to correct the violation of
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the federal right.”

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B.

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There is nothing before the Court which would justify granting Plaintiff’s request for

Legal Property

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injunctive relief relating to his legal materials. In the first place, if the eight boxes of legal

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documents and materials already have been destroyed, the Court obviously any order that

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they be produced would be futile.

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Next, Plaintiff has no cognizable claim pending in this action relating to destruction of

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his legal property nor does he suggest he might have such a claim against any of the

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parties to this action. Federal courts are courts of limited jurisdiction, and in considering a

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request for preliminary injunctive relief, the Court is bound by the requirement that as a

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preliminary matter, it have before it an actual case or controversy. City of Los Angeles, 461

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U.S. at 102; Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,

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Inc., 454 U.S. 464, 471 (1982). At this point Plaintiff has no cognizable claim relating to

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legal property.

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Further, Plaintiff may not enjoin unnamed individuals not before the Court. “A federal

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court may issue an injunction if it has personal jurisdiction over the parties and subject

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matter jurisdiction over the claim; it may not attempt to determine the rights of persons not

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before the court.” Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir.

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1985). Those acting in concert with a party, may be bound by an injunction issued against

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the party pursuant to Federal Rule of Civil Procedure 65. Regal Knitwear Co., v. N.L.R.B.,

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324 U.S. 9, 14 (1945); Golden State Bottling Co., Inc., v. N.L.R.B., 414 U.S. 168, 178

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(1973). However, Rule 65 does not confer personal jurisdiction where it otherwise is

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lacking. Citizens Concerned for Separation of Church and State v. City and County of

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Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). “Having a relationship to an enjoined party

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of the sort set forth in Rule 65(d) exposes a non-party to contempt for assisting the party to

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violate the injunction, but does not justify granting injunctive relief against the non-party in

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its separate capacity.” Federal Trade Com'n v. Productive Marketing, Inc., 136 F.Supp.2d

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1096, 1104 (C.D. Cal. 2001), citing Additive Controls & Measurement Systems, Inc., v.
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Flowdata, Inc., 96 F.3d 1390, 1395–96 (Fed. Cir. 1996).

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Even if all of the contrary were true, Plaintiff fails to allege how interference with his

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legal property threatens irreparable injury and that the balance of hardship tips in his favor.

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It is unclear what documents and materials were in the boxes and how it might relate to

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active cases if at all. See City of Los Angeles, 461 U.S. at 101–102 (plaintiff must show

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“real and immediate” threat of injury, and “past exposure to illegal conduct does not in itself

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show a present case or controversy regarding injunctive relief . . . if unaccompanied by any

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continuing, present, adverse effects .”).

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C.

Retaliation

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Similarly, there is no basis for granting Plaintiff injunctive relief against retaliation.

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Plaintiff’s retaliation claim has been dismissed by the Court. (ECF No. 17.) The merits of

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any such a claim and threat of injury arising therefrom are unsupported by any pleading or

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any factual allegations before the Court. See City of Los Angeles, 461 U.S. at 101–02

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(plaintiff must show “real and immediate” threat of injury). Merely conclusory allegations

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against unnamed individuals are not sufficient for the Court issue injunctive relief.

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Finally, Plaintiff’s transfer to HDSP renders moot the need for injunctive relief against
CSP parties.

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D.

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Plaintiff similarly fails to provide the Court a basis for ordering single cell status. The

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allegation of prior assault by cellmates does not suggest a present and immediate threat of

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future such irreparable harm. City of Los Angeles, 461 U.S. at 101-02. Absent the

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existence of exceptional circumstances not present here, the Court will not intervene in the

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day-to-day management of prisons. See e.g., Overton v. Bazzetta, 539 U.S. 126, 132

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(2003) (prison officials entitled to substantial deference); Sandin v. Connor, 515 U.S. 472,

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482–83 (1995) (disapproving the involvement of federal courts in the day-today-

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management of prisons).

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Single Cell

And as with Plaintiff’s retaliation claim, his transfer to HDSP renders moot any need
for injunctive relief against CSP parties.
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IV.

LEGAL CONCLUSIONS AND RECOMMENDATIONS

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Plaintiff fails to allege facts suggesting the need for and entitlement to injunctive

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relief. The undersigned recommends that Plaintiff’s motion for a temporary restraining order

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and emergency preliminary injunction (ECF No. 19) as supplemented (ECF Nos. 21, 22),

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be DENIED WITHOUT PREJUDICE.

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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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fourteen (14) days after being served with these findings and recommendations, the parties

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

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to Magistrate Judge’s Findings and Recommendations.” A party may respond to another

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party’s objections by filing a response within fourteen (14) days after being served with a

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copy of that party’s objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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August 13, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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