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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RASHAD KING, 12 13 14 15 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) 16 17 Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 19 complaint, filed on December 18, 2015, for violations of the Eighth Amendment against 20 Defendants Holland and Duncan for excessive force during the first escort; Defendants Holland, 21 Duncan, and Solis for excessive force in the second cell; against Defendant Tingley for failing to 22 intervene in the attack by Defendants Holland, Solis, and Duncan in the second cell; and an 23 Eighth Amendment sexual assault against Defendant Holland. Plaintiff is currently incarcerated 24 at High Desert State Prison. 25 On April 17, 2017, Plaintiff filed the instant request for an order or subpoena requiring 26 Warden M. E. Spearman at High Desert State Prison, a nonparty to this action, to allow Plaintiff 27 to obtain an affidavit from Inmate Crawford (CDCR # V98835), who is currently incarcerated at 28 Pelican Bay State Prison. Plaintiff seeks for the Court to require Warden Spearman to allow 1 1 Plaintiff to confidentially or legally correspond with Inmate Crawford. The Court will construe 2 the request as one seeking a preliminary injunction. 3 I. Legal Standard 4 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 5 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 6 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 7 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 8 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 9 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 10 omitted). In cases brought by prisoners involving conditions of confinement, any preliminary 11 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 12 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 13 harm.” 18 U.S.C. § 3626(a)(2). 14 Federal courts are courts of limited jurisdiction and in considering a request for 15 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 16 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 101–02 (1983); 17 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 18 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 19 power to hear the matter in question. Id. Additionally, district courts lack the authority to issue 20 an injunction directed at an entity or individual that is not a party before it. Zenith Radio Corp. v. 21 Hazeltine Research, Inc., 395 U.S. 100, 112 (1969); Zepeda v. U.S. INS, 753 F.2d 719, 727 (9th 22 Cir. 1983). 23 II. Discussion 24 Plaintiff asserts that he “is representing his self in the case pro per and doesn’t have the 25 assistance of counsel to obtain information it will be fair in issuing an order/subpoena, due to 26 prison official will not allow correspondance.” (ECF No. 39, p. 1) (errors in original). While 27 prisoners have a constitutional right to send and receive mail, it is limited by the state’s interest in 28 maintaining safety and security in its prisons. Turner v. Safley, 482 U.S. 78, 89 (1987). Inmates 2 1 in California’s prison system may correspond with other inmates “provided those persons meet 2 the criteria of approval of no known [Security Threat Group] affiliation, or involvement with a 3 known terrorist group or racketeering enterprise.” Cal. Code Regs. tit. 15, § 3139(b) (2017). The 4 same regulation gives a warden authority to restrict an inmate in another facility from 5 communicating with inmates in his custody. “[A]pproval to correspond may be revoked due to 6 disciplinary violations involving correspondence between the inmates/parolees or as a result of 7 classification action based on safety and security.” Id. § 3139(d). “If an inmate’s request to 8 correspond with another inmate/parolee is denied, the [Correctional Counselor I] shall advise the 9 inmate in writing.” Id. § 3139(c). 10 Here, Plaintiff has not indicated whether he has attempted to use the process provided for 11 in § 3139 and been denied. He does not submit any documentation, or otherwise describe any 12 effort he has made to request correspondence with Inmate Crawford, nor does he provide any 13 reason why such request was denied. He merely states that the prison official will not allow 14 correspondence. Thus, even if the Court had the jurisdiction to issue an injunction against Warden 15 Spearman, who is not a party to this action, Plaintiff has not met the high burden of showing 16 irreparable harm in the absence of injunctive relief or that the balance of equities tips in favor of 17 an injunction here. As a result, the Court recommends that Plaintiff’s request be denied. Plaintiff 18 is encouraged to avail himself of the process provided for in § 3139 to request to correspond with 19 Inmate Crawford, to the extent he has not yet done so. 20 III. 21 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s request for an order or 22 Conclusion subpoena in obtaining affidavit statement from witness be DENIED. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 fourteen (14) days after being served with these Findings and Recommendations, the parties may 26 file written objections with the Court. The document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 28 objections within the specified time may result in the waiver of the “right to challenge the 3 1 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara May 2, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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