Sessing v. Beard, et al.
Filing
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ORDER denying 73 Motion to Shorten Time. FINDINGS and RECOMMENDATIONS to deny 70 & 81 Motions for a Protective Order. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days signed by Magistrate Judge Michael J. Seng on 10/25/2016. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NATHAN SESSING,
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Plaintiff,
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Case No. 1:13-cv-01684-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S EX
PARTE MOTION TO SHORTEN TIME
v.
(ECF No. 73)
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STU SHERMAN, et al.,
Defendants.
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTIONS FOR
A PROTECTIVE ORDER
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(ECF Nos. 70 & 81)
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FOURTEEN DAY OBJECTION
DEADLINE
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Plaintiff Nathan Sessing is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on
Plaintiff’s June 19, 2015 fourth amended complaint against Defendants Sherman,
Stainer, and Braggs for violating the Equal Protection Clause of the Fourteenth
Amendment. (ECF No. 34.). The parties have declined Magistrate Judge jurisdiction.
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Pending before the Court are two motions by Plaintiff seeking “protective orders”
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enjoining Plaintiff’s transfer from the California Substance Abuse and Treatment Facility
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(“SATF”). (ECF Nos. 70 & 81). Defendants have opposed these motions. (ECF No. 86.)
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Plaintiff has not replied. They are submitted. Local Rule 230(l).
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Also before the Court is Plaintiff’s ex parte motion to shorten time to rule on ECF
No. 70. (ECF No. 73.)
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I.
Background
At all times relevant to this suit, Plaintiff was housed at the SATF in Corcoran,
California.
Plaintiff is a practitioner of Asatru/Odinism, an Earth-based polytheistic religion
originating out of Northern Europe. According to Plaintiff, “[o]utdoor worship utilizing a
fire pit and specific facilities, [including an altar and a circle of stones] is a central part of
Asatru, and the religion cannot be practiced without it.” Plaintiff’s fourth amended
complaint alleges that Defendants violated his right to Equal Protection under the law
when they denied him and other practitioners of Asatru/Odinism a designated outdoor
worship area with a fire pit, despite allowing the same to practitioners of the Native
American religion. Plaintiff seeks only declaratory relief and an injunction directing
Defendants to construct an outdoor worship area for Odinists at SATF.
On August 15, 2016, Plaintiff filed his “Motion for a Protective Order and
Emergency Relief” asking this Court to issue an order preventing his transfer from SATF
to High Desert State Prison (“HDSP”). (ECF No. 70.) Plaintiff argues that since this case
seeks only injunctive relief, to wit, the construction of a worship area at SATF, his
transfer to a new institution may moot his claims for relief. If so, his suit may be
dismissed and he could be left unable to recoup costs of suit and end up having to pay
Defendants’ costs.
On September 28, 2016, Plaintiff filed his “Motion for Emergency Relief” raising
the same concerns and seeking to stop his transfer out of SATF. (ECF No. 81.)
On October 10, 2016, Defendants filed opposition to both motions. (ECF No. 86.)
They note that as of the date of their opposition, Plaintiff had already been transferred to
HDSP. As such, his request to, in effect, enjoin his transfer was moot. Defendants
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argue, alternatively, that the Court in any event lacks jurisdiction over non-party
Institutional Classification Committee which recommended the transfer and, finally, that
the relief sought exceeds that requested in Plaintiff’s suit.
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II.
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Plaintiff characterizes his motions as requests for a protective order1 to preserve
his ability to litigate. See Phillips ex re. Estates of Byrd v. General Motoes Corp., 307
F.3d 1206, 1210-11 (9th Cir. 2002) (a party moving for a protective order must show
that without it, he will be significantly impeded from litigating the action); see also Pope
v. Garcia, No. CIV S-11-0101 LKK, 2012 WL 1552431, at *3 (E.D. Cal. Apr. 30, 2012)
(noting that in contrast to a preliminary injunction, “[t]he focus of the harm in protective
order situations is harm to the ability to litigate, not irreparable harm to the plaintiff.”)
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The Court construes Plaintiff’s motions as a request to enjoin his transfer from
SATF. He characterizes it as a request for an order necessary to prevent what he
considers irreparable harm to himself, i.e., the dismissal of his lawsuit and the loss of
his claim to recover litigation expenses. See Sierra On-Line, Inc. v. Phoenix Software,
Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (“A preliminary injunction . . . [is] a device for
preserving the status quo and preventing the irreparable loss of rights before
judgment.”); see also U. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose
of a preliminary injunction is merely to preserve the relative positions of the parties until
a trial on the merits can be held.”)
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Legal Standard
Federal courts are courts of limited jurisdiction. The pendency of this action does
not give the Court jurisdiction over prison officials in general or over any interim relief
requested that is not the subject of the operative complaint. Summers v. Earth Institute,
555 U.S. 488, 492-93 (2009) (citation omitted); Mayfield v. United States, 599 F.3d 964,
969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to
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Not to be confused with protective orders issued pursuant to Federal Rule of Civil Procedure 26(c).
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the cognizable legal claims upon which this action is proceeding. Summers, 555 U.S. at
491-93; Mayfield, 599 F.3d at 969. AA federal court may issue an injunction if it has
personal jurisdiction over the parties and subject matter jurisdiction over the claim; it
may not attempt to determine the rights of persons not before the court.@ Zepeda v.
United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added).
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III.
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Discussion
The Court lacks jurisdiction to grant the relief Plaintiff seeks.
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Plaintiff’s lawsuit arises from an asserted lack of appropriate religious
10 accommodations at SATF. In the instant motions he seeks an order preventing his
11 transfer to a different institution before his claims have been decided on the merits.
12 Such relief reaches far beyond the scope of his complaint and is not “of the same
13 character as may be granted finally.” De Beers, 325 U.S. at 220. He has not, in any
14 event, identified any right to be protected from dismissal of his claims on valid
15 substantive grounds or to preservation of potential claims for costs of suit.
Plaintiff’s request for an order preventing his transfer was, in any event, rendered
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17 moot by his transfer to HDSP on or before October 24, 2016. See Dilley v. Gunn, 64
18 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
Finally, it appears Plaintiff’s transfer (following an assault by another prisoner)
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21 here, the Court will not intervene in the day-to-day management of prisons. See e.g.,
22 Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (prison officials entitled to substantial
23 deference); Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (disapproving the
24 involvement of federal courts in the day-to-day-management of prisons).
The Court will therefore recommend denying Plaintiff’s motions.
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See Pl.’s Notice of Change of Address (ECF No. 91) at 1.
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IV.
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Plaintiff asks that the Court rule on Plaintiff’s Motion for a Protective Order and
Emergency Relief prior to the expiration of the twenty-one day period for filing an
opposition prescribed by Local Rule 230(l). (ECF No. 73.) The Court construes this as a
request to shorten time pursuant to Local Rule 144(e).
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Local Rule 144(e) requires that applications to shorten time set forth the
circumstances claimed to justify the issuance of an order shortening time. Ex parte
applications to shorten time will not be granted except upon an affidavit showing a
satisfactory explanation for the need for the issuance of such an order and for the failure
to obtain a stipulation for the issuance of such an order from the opposing party. Local
Rule 144(e).
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Ex Parte Request to Shorten Time
Here, Plaintiff has not provided a satisfactory explanation for the need to shorten
time, other than to state that his motion is “time-sensitive” and Plaintiff will suffer
irreparable harm if relief is not granted. The Court will assume that Plaintiff’ was
concerned that absent an order shortening time, his transfer would predate the Court’s
ruling and moot the motion. However, as noted above, the Court could not have granted
the relief Plaintiff seeks. Plaintiff’s motion to shorten time will be denied.
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V.
Conclusion
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff’s motion to shorten time (ECF No. 73) is DENIED.
Further, it is HEREBY RECOMMENDED that:
2. Plaintiff’s motions for a protective order, construed as motions for a
preliminary injunction (ECF No. 70 & 81), be DENIED.
These Findings and Recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
636(b)(l). Within fourteen (14) days after being served with these Findings and
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Recommendations, the parties may file written objections with the Court. The document
should
be
captioned
“Objections
to
Magistrate
Judge’s
Findings
and
Recommendations.” The parties are advised that failure to file objections within the
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772
F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
1991)).
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Dated:
October 25, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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