Becker v. Sherman, et al.

Filing 17

ORDER (1) GRANTING MOTION FOR EXTENSION OF TIME; (2) GRANTING MOTION FOR EXPEDITED CONSIDERATION;(3) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER; (4) DENYING MOTION FOR CERTIFIED TRUST STATEMENT; AND (5) GRANTING MOTION FOR WAIVER OF THE ELECTRONIC FILING REQUIREMENT 3 , 4 , 5 , 12 , and 16 , signed by Magistrate Judge Michael J. Seng on 1/27/17: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH BECKER,

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Plaintiff,
v.

CASE No. 1:16-cv-0828-MJS (PC)
ORDER
(1) GRANTING
MOTION
EXTENSION OF TIME;

FOR

(2) GRANTING
MOTION
EXPEDITED CONSIDERATION;

FOR

WARDEN SHERMAN, et al.,
Defendants.

(3) DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER;
(4) DENYING MOTION FOR CERTIFIED
TRUST STATEMENT; AND
(5) GRANTING MOTION FOR WAIVER
OF
THE
ELECTRONIC
FILING
REQUIREMENT
(ECF NOS. 3, 4, 5, 12, and 16.)

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THIRTY-DAY DEADLINE
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Plaintiff is a transgender state prisoner proceeding pro se and in forma pauperis
in a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the
jurisdiction of a magistrate judge. (ECF No. 9.)

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On August 29, 2016, Plaintiff’s complaint was screened and found to state an

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Eighth Amendment failure to protect claim against Defendant Lt. Maximo Lunes. Plaintiff

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accuses the Defendant of acting with deliberate indifference when he ordered Plaintiff to

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be double-celled with a second inmate after Plaintiff’s then-current cell-mate attempted

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to rape her. In the Screening Order, Plaintiff was directed to either file a first amended

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complaint within thirty days or notify the Court of her willingness to proceed only on the

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claim found to be cognizable. (ECF No. 14.)

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In a later-filed document, Plaintiff alleged that the second inmate with whom she

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was ordered to double-cell raped her shortly after Plaintiff’s placement in the cell.1 This

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rape occurred even after Plaintiff’s attorney contacted Lt. Lunes to inform him of the

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danger to Plaintiff’s safety caused by double-celling. Pl.’s Decl. ¶¶ 7-10 (ECF No. 11.)

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In light of the seriousness of the allegations and the serious potential for future

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harm, the undersigned determined that Plaintiff would benefit from the assistance of

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counsel. Accordingly, on September 27, 2016, all dates were vacated and the ADR and

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Pro Bono Coordinator was directed to seek out pro bono counsel. (ECF No. 15.) Despite

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a months-long search, however, efforts to locate counsel have been unsuccessful. The

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Court must therefore re-direct Plaintiff to proceed with the filing of an amended pleading

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at this time.

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The Court will now also address a number of motions filed by Plaintiff, including a

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motion for injunctive relief and a related motion to expedite ruling on this motion (ECF

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Nos. 3, 12), a motion directing institutional staff to furnish a certified trust statement (ECF

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No. 4), and a motion to waive the e-mail filing of a pleading (ECF No. 5).

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I.

Motion for Temporary Restraining Order

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When Plaintiff initiated this action on June 15, 2016, she also filed a motion for a

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temporary restraining order seeking to prevent Plaintiff’s future victimization by directing

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institutional staff members to place her on single-cell status. At the time, Plaintiff was

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Plaintiff has since been transferred to another institution where she remains in general population. (ECF
No. 11.)

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housed at California Substance Abuse and Treatment Facility in Corcoran, California.

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Plaintiff has since been transferred to the Sierra Conservation Center in Jamestown,

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California. (ECF No. 10.)

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The purpose of a temporary restraining order or a preliminary injunction is to

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preserve the status quo if the balance of equities so heavily favors the moving party that

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justice requires the court to intervene to secure the positions until the merits of the action

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are ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

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“A plaintiff seeking a preliminary injunction [or temporary restraining order] must

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establish that he is likely to succeed on the merits, that he is likely to suffer irreparable

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

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and that an injunction is in the public interest.” Winter v. Natural Resources Defense

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Council, Inc., 555 U.S. 7, 20 (2008).

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“[A] preliminary injunction is an extraordinary and drastic remedy, one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations omitted)

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(emphasis in original). A party seeking a temporary restraining order or preliminary

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injunction simply cannot prevail when that motion is unsupported by evidence.

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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

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matter, it have before it an actual case or controversy. City of Los Angeles v. Lyons, 461

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U.S. 95 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church

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and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id. Requests for

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prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation

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Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn,

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extends no further than necessary to correct the violation of the Federal right, and is the

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least intrusive means necessary to correct the violation of the Federal right.”

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Here, although the Court found a cognizable claim in the Complaint against Lt.

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Lunes, Plaintiff has not given notice of willingness to proceed on the Complaint as

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screened. To the contrary, her recent motion for extension of time to file an amended

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complaint indicates that she does not wish to proceed on the claim already found to be

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cognizable. As such, there is not yet an actual case or controversy before the Court.

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Moreover, now that Plaintiff has been transferred to another institution, her motion

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seeks an order directed towards non-parties. “A federal court may issue an injunction if it

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has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it

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may not attempt to determine the rights of persons not before the court.” Zepeda v.

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United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added).

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Accordingly, Plaintiff's request for injunctive relief must be denied.
II.

Motion for Certified Trust Statement
Plaintiff’s motion for an order for a certified trust statement will be denied as moot

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because Plaintiff has already provided this statement to the Court. (ECF No. 2.)

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Additionally, Plaintiff has already been granted leave to proceed in forma pauperis. (ECF

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No. 7.)

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III.

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Motion for Court to Waive Email Filing Requirement
Finally, Plaintiff moves the Court for a waiver of the requirement that her

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complaint be filed electronically. Good cause appearing, this request will be granted.

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IV.

Conclusion

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time to file an amended complaint (ECF No.

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16) is GRANTED;
2. Plaintiff shall file a First Amended Complaint within thirty days from the date of
this Order;

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3. Plaintiff’s motion for expedited consideration (ECF No. 12) is GRANTED;

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4. Plaintiff’s motion for a temporary restraining order (ECF No. 3) is DENIED;

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5. Plaintiff’s motion for a certified trust statement (ECF No. 4) is DENIED; and
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6. Plaintiff’s motion for a waiver of the electronic filing requirement (ECF No. 5) is

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GRANTED.

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IT IS SO ORDERED.
Dated:

January 27, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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