King v. Holland et al

Filing 42

FINDINGS and RECOMMENDATIONS Recommending Denial of 39 Request of Order/Subpoena in Obtaining Affidavit Statement From Witness, signed by Magistrate Judge Barbara A. McAuliffe on 5/2/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RASHAD KING,

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Case No. 1:15-cv-01885-DAD-BAM (PC)
Plaintiff,

v.
S. HOLLAND, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL OF REQUEST
FOR ORDER OR SUBPOENA IN
OBTAINING AFFIDAVIT STATEMENT
FROM WITNESS
(ECF No. 39)

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Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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complaint, filed on December 18, 2015, for violations of the Eighth Amendment against

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Defendants Holland and Duncan for excessive force during the first escort; Defendants Holland,

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Duncan, and Solis for excessive force in the second cell; against Defendant Tingley for failing to

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intervene in the attack by Defendants Holland, Solis, and Duncan in the second cell; and an

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Eighth Amendment sexual assault against Defendant Holland. Plaintiff is currently incarcerated

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at High Desert State Prison.

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On April 17, 2017, Plaintiff filed the instant request for an order or subpoena requiring

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Warden M. E. Spearman at High Desert State Prison, a nonparty to this action, to allow Plaintiff

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to obtain an affidavit from Inmate Crawford (CDCR # V98835), who is currently incarcerated at

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Pelican Bay State Prison. Plaintiff seeks for the Court to require Warden Spearman to allow
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Plaintiff to confidentially or legally correspond with Inmate Crawford. The Court will construe

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the request as one seeking a preliminary injunction.

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I.

Legal Standard

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

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a

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

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

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favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction

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may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation

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omitted). In cases brought by prisoners involving conditions of confinement, any preliminary

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injunction “must be narrowly drawn, extend no further than necessary to correct the harm the

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court finds requires preliminary relief, and be the least intrusive means necessary to correct the

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harm.” 18 U.S.C. § 3626(a)(2).

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Federal courts are courts of limited jurisdiction and in considering a request for

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preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it

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have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 101–02 (1983);

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Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S.

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464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no

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power to hear the matter in question. Id. Additionally, district courts lack the authority to issue

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an injunction directed at an entity or individual that is not a party before it. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100, 112 (1969); Zepeda v. U.S. INS, 753 F.2d 719, 727 (9th

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Cir. 1983).

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II.

Discussion

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Plaintiff asserts that he “is representing his self in the case pro per and doesn’t have the

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assistance of counsel to obtain information it will be fair in issuing an order/subpoena, due to

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prison official will not allow correspondance.” (ECF No. 39, p. 1) (errors in original). While

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prisoners have a constitutional right to send and receive mail, it is limited by the state’s interest in

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maintaining safety and security in its prisons. Turner v. Safley, 482 U.S. 78, 89 (1987). Inmates
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in California’s prison system may correspond with other inmates “provided those persons meet

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the criteria of approval of no known [Security Threat Group] affiliation, or involvement with a

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known terrorist group or racketeering enterprise.” Cal. Code Regs. tit. 15, § 3139(b) (2017). The

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same regulation gives a warden authority to restrict an inmate in another facility from

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communicating with inmates in his custody. “[A]pproval to correspond may be revoked due to

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disciplinary violations involving correspondence between the inmates/parolees or as a result of

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classification action based on safety and security.” Id. § 3139(d). “If an inmate’s request to

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correspond with another inmate/parolee is denied, the [Correctional Counselor I] shall advise the

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inmate in writing.” Id. § 3139(c).

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Here, Plaintiff has not indicated whether he has attempted to use the process provided for

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in § 3139 and been denied. He does not submit any documentation, or otherwise describe any

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effort he has made to request correspondence with Inmate Crawford, nor does he provide any

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reason why such request was denied. He merely states that the prison official will not allow

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correspondence. Thus, even if the Court had the jurisdiction to issue an injunction against Warden

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Spearman, who is not a party to this action, Plaintiff has not met the high burden of showing

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irreparable harm in the absence of injunctive relief or that the balance of equities tips in favor of

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an injunction here. As a result, the Court recommends that Plaintiff’s request be denied. Plaintiff

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is encouraged to avail himself of the process provided for in § 3139 to request to correspond with

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Inmate Crawford, to the extent he has not yet done so.

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III.

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Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s request for an order or

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Conclusion

subpoena in obtaining affidavit statement from witness be DENIED.

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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 may

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

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 2, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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