Washington et al v. Fresno County Sheriff et al

Filing 94

ORDER Denying Plaintiff's Requests for an Exparte Hearing and Issuance of a Preliminary Injunction (Docs. 79 90 ), signed by District Judge Dale A. Drozd on 4/5/2015. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PERRY WASHINGTON, et al.,

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Plaintiff,

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No. 1:14-cv-00129-DAD-SAB

v.
FRESNO COUNTY SHERIFF, et al.,

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ORDER DENYING PLAINTIFF‟S
REQUESTS FOR AN EX PARTE HEARING
AND ISSUANCE OF A PRELIMINARY
INJUNCTION

Defendants.
(Doc. Nos. 79, 90)

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Plaintiff Perry Washington, a pretrial detainee at the Fresno County Jail, is proceeding pro

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se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is

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proceeding on plaintiff‟s first amended complaint filed April 2, 2014, in which plaintiff alleges

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that in 2014 defendant, Sheriff‟s Deputy Tony Veloz, was deliberately indifferent to plaintiff‟s

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requests to be moved due to threats from other inmates and allowed other inmates to attack

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plaintiff, all in retaliation for plaintiff previously requesting an inmate grievance form. (Doc. No.

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43.)

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BACKGROUND
On February 5, 2016, plaintiff filed a request for an ex-parte hearing and issuance of a

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preliminary injunction in this action. (Doc. No. 79.) Defendants did not file an opposition to the

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motion. On March 16, 2016, plaintiff filed a second request for an ex-parte hearing. (Doc. No.
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90.) Both of plaintiff‟s motions set forth the same facts and make the same requests.

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Specifically, plaintiff seeks an order requiring the Fresno County Jail to transport him the

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emergency room to see a gastroenterologist for treatment, which he argues is needed due to his

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being provided contaminated food and water at the jail. Plaintiff is also seeking an order

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requiring that: three bottles of water be delivered to his jail cell each day; medications be

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delivered to him by medical staff rather than jail staff; a human rights attorney be assigned to

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represent him; he be provided access to a telephone; a hearing be held regarding the treatment he

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is receiving in the jail; he be granted access to the inmate grievance process and to mail; and an

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internal affairs officer be designated to inspect the documents in his cell and deliver them to his

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sister or mother. (Doc. Nos. 79 at 10–12; 90 at 4–5.) Finally, plaintiff requests that he be

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transported from the jail to the court within twenty four hours for a hearing with respect to his

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requests. (Doc. Nos. 79 at 13; 90 at 4.)

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ANALYSIS

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A preliminary injunction is an extraordinary remedy, and is never awarded as of right.

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted).

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Courts may grant preliminary injunctions only if the plaintiff establishes each of the following:

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(1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm absent a

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preliminary injunction; (3) a balance of equities tipping in plaintiff‟s favor; and (4) the public

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interest in awarding injunctive relief. Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012);

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Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 (9th Cir. 2010). An injunction may

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only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter, 555 U.S.

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at 22 (citation omitted). Thus, “injunctive relief is „to be used sparingly, and only in a clear and

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plain case.‟” Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (quoting Rizzo v. Goode,

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423 U.S. 362, 378 (1976)).

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Here, the court finds that it lacks jurisdiction to grant the injunctive relief plaintiff seeks.

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The court further finds that, in any event, plaintiff has not made the required showing that he is

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likely to suffer irreparable injury in the absence of the granting of a preliminary injunction.

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I.

The court lacks jurisdiction to grant injunctive relief
“A federal court may issue an injunction if it has personal jurisdiction over the parties and

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

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not before the court.” Zepeda v. United States Immigration and Naturalization Serv., 753 F.2d

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719, 727 (9th Cir. 1985). See also In re Rationis Enters., Inc. of Panama, 261 F.3d 264, 267 (2d

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Cir. 2001) (noting that the threshold requirement of jurisdiction “springs from the nature and

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limits of the judicial power of the United States and is inflexible and without exception”). Under

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

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action, their officers, agents, servants, employees, and attorneys, and . . . those persons in active

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concert or participation with them.” Zepeda, 753 F.2d at 727. A court cannot enter an injunction

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against individuals or entities not subject to the court‟s jurisdiction. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100, 112 (1969); Zepeda, 753 F.2d at 727; see also Walker v.

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Varela, No. CV 10–2441–JFW(SP), 2013 WL 816177, at *2 (C.D. Cal. Mar. 1, 2013).
In order to grant the plaintiff‟s desired relief, the court must therefore be able to exercise

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jurisdiction over the Fresno County Jail. However, the Fresno County Jail is not a party to this

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action and a plaintiff cannot, as a general matter, seek injunctive relief in a case against parties

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who are not named as defendants in that case. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)

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(“Unrelated claims against different defendants belong in different suits[.]”). Here, the only

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named defendant in this action is Deputy Veloz. But the plaintiff does not indicate that Deputy

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Veloz is responsible for violations alleged in his requests for a preliminary injunction. Neither

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does plaintiff establish that other entities or individuals operated in active concert or participation

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with the defendant Deputy Veloz to carry out any alleged violations. Fed. R. Civ. P. 65(d)(2);

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Zenith Radio Corp., 395 U.S. at 112. The court therefore lacks authority to order the relief

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requested by the plaintiff. As such, plaintiff‟s requests for preliminary injunctive relief must be

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denied for lack of jurisdiction.

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II.

Plaintiff failed to demonstrate likelihood of irreparable harm
When alleging the likelihood of suffering irreparable harm, a plaintiff must demonstrate

immediate threatened injury. Caribbean Marine Servs. Co. v. Baldridge, 884 F.2d 668, 674 (9th
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Cir. 1988). To do so, a plaintiff must do more than allege imminent harm sufficient to establish

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standing. Id. Speculative injury is insufficient to meet this standard. Id.; see also Smith v.

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Terhune, 213 F.3d 643 (9th Cir. 2000).

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Plaintiff has failed to establish the imminent irreparable injury required to warrant the

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issuance of a preliminary injunction. In his complaint, plaintiff alleges that defendant Deputy

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Veloz was deliberately indifferent to his requests to be moved due to threats from other inmates at

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the jail and retaliated against him by allowing other inmates to attack him. (Doc. No. 27.) In his

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motion for preliminary injunctive relief, however, plaintiff alleges violations of his constitutional

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rights unrelated to those previously alleged in his complaint in this action. Moreover, the factual

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allegations made in plaintiff‟s request for preliminary injunctive relief are presented in a

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conclusory fashion, without reference to any supporting evidence. Many of the facts alleged by

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the plaintiff relate to claims previously dismissed by the court. (Doc. Nos. 26, 42.) Because

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plaintiff has failed to support his allegations, he necessarily cannot and has not yet shown that he

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is “likely to succeed on the merits,” that “the balance of equities tips in his favor,” or that the

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issuance of an injunction in this case would serve the public interest.

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In sum, because the court lacks jurisdiction to order the preliminary relief plaintiff seeks,

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and because, in any event, he has not shown the likelihood that he will suffer irreparable harm in

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the absence of the granting of the preliminary injunctive relief he requests, his motions must be

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denied.

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CONCLUSION
Accordingly, for the reasons set forth above, plaintiff‟s motions for preliminary injunctive

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relief filed February 5, 2016 (Doc. No. 79), and March 16, 2016 (Doc. No. 90), are denied.

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IT IS SO ORDERED.

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Dated:

April 5, 2016
UNITED STATES DISTRICT JUDGE

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