Meador v. Aye et al

Filing 117

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 116 Motion for a Preliminary Injunction be Denied signed by Magistrate Judge Erica P. Grosjean on 02/27/2017. Referred to Judge Drozd; Objections to F&R due by 3/23/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR A PRELIMINARY
INJUNCTION BE DENIED
(ECF NO. 116)

Defendants.

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1:14-cv-00006-DAD-EPG (PC)

GORDON DALE MEADOR,

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

v.
K. AYE, et al.,

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Gordon Meador (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On February 24, 2017, Plaintiff filed

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an “Application for Preliminary Injunction to Prevent the Infliction of Pain and Suffering FRCP

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65(a) Declaration” (“the Motion”). (ECF No. 116).

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According to the Motion, Plaintiff has been on morphine since February 13th, 2013. A

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602 medical appeal directed that Plaintiff was to be provided morphine every 60 days. However,

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Dr. C. Wu (who was assigned in January of 2017 to the unit that Plaintiff is in) violated the 602

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medical appeal by renewing Plaintiff’s morphine for only 10 days. Accordingly, on February

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12th, 2017, Plaintiff lodged a 602 against Dr. C. Wu. On February 15th, 2017, Plaintiff personally

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sent Dr. C. Wu a notice of the violation. On February 18th, 2017, Dr. C. Wu “remove[d] the

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plaintiff from morphine all together.” Dr. C. Wu did this without ever examining Plaintiff.

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Removing Plaintiff from morphine violates the Chief Medical Executive’s order to provide

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Plaintiff with morphine every sixty days. Plaintiff states that he will not be able to function

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without the morphine. Plaintiff also appears to be alleging some sort of retaliation in relation to
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his prosecution of this case, but he provides no facts related to this issue. Plaintiff asks for an

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evidentiary hearing on these issues, and for a preliminary injunction directing that Plaintiff be

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placed back on morphine pending the outcome of the evidentiary hearing.

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A federal district court may issue emergency injunctive relief only if it has personal

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jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros.,

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Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party

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officially, and is required to take action in that capacity, only upon service of summons or other

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authority-asserting measure stating the time within which the party served must appear to

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defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g.,

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Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d

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719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive

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relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under

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Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,”

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their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active

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concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

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On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is

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

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

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public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that

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irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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While the Court is sympathetic to Plaintiff’s plight, the Court will recommend that the

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Motion be denied. Dr. C. Wu is not a defendant in this case. Accordingly, the Court does not

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currently have jurisdiction to order Dr. C. Wu (the doctor who is now apparently in charge of

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Plaintiff’s care) to prescribe Plaintiff morphine.

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Additionally, Plaintiff himself cited to Federal Rule of Civil Procedure 65(a). Federal

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Rule of Civil Procedure 65(a)(1) clearly states that “[t]he court may issue a preliminary injunction
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only on notice to the adverse party.”1 Despite this, there is no indication that Plaintiff served Dr.

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C. Wu with a copy of the Motion.

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Finally, the Court notes that it does not appear that Plaintiff tried to resolve this issue

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through the prison appeals process before filing the Motion. According to Plaintiff, the Chief

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Medical Executive has directed that Plaintiff is to be provided with morphine. However, it

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appears that instead of filing an appeal of Dr. C Wu’s action of removing Plaintiff from

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morphine, which allegedly violates the Chief Medical Executive’s directive, Plaintiff filed the

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Motion (the Motion is dated February 18th, 2017, which is the same day Dr. C. Wu allegedly

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informed Plaintiff that Plaintiff was no longer going to receive morphine).

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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that the
Motion be DENIED.

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These Findings and Recommendations will be submitted to the United States District

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Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within

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twenty-one (21) days after being served with a copy of these Findings and Recommendations,

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any party may file written objections with the court and serve a copy on all parties. Such a

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document

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Recommendations.” Any reply to the objections shall be served and filed within ten (10) days

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after service of the objections. The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

should

be

captioned

“Objections

to

Magistrate

Judge’s

Findings

and

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IT IS SO ORDERED.
Dated:

February 27, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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The Court notes that at one point Plaintiff asks for a temporary restraining order, as opposed
to a preliminary injunction. However, in that same sentence Plaintiff cites to Federal Rule of Civil Procedure 65(a),
which deals with preliminary injunctions. Additionally, in every other instance Plaintiff asks for a preliminary
injunction, not a temporary restraining order. Accordingly, the Court treats the Motion as a request for a preliminary
injunction.

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