Flowers v. Davey, et al.

Filing 18

FINDINGS and RECOMMENDATIONS Recommending Denial of Motion for Preliminary Injunction and Temporary Restraining Order 6 , signed by Magistrate Judge Barbara A. McAuliffe on 7/18/17: 14-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) ) RUPERT FLOWERS, Plaintiff, v. DAVE DAVEY, et al., 15 Defendants. 16 17 18 19 Case No.: 1:16-cv-01363-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (ECF No. 6) FOURTEEN (14) DAY DEADLINE FINDINGS AND RECOMMENDATION 20 I. 21 Plaintiff Rupert Flowers (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on 23 September 15, 2016, while incarcerated at Corcoran State Prison. 24 25 Background On September 26, 2016, Plaintiff filed a motion for preliminary injunction and temporary restraining order. (ECF No. 6.) 26 On December 6, 2016, Plaintiff’s first amended complaint was filed. (ECF Nos. 10.) 27 On April 28, Plaintiff filed a Notice of Change of Address, which indicated that he had been 28 moved to the California Substance Abuse Treatment Facility. (ECF No. 16.) 1 1 2 3 On July 14, 2017, the Court screened Plaintiff’s first amended complaint and dismissed it with leave to amend within thirty days. (ECF No. 7.) Plaintiff’s motion for a preliminary injunction and temporary restraining order is currently 4 before the Court. 5 II. 6 Plaintiff seeks a preliminary injunction and temporary restraining order “to have defendants 7 abstain from delaying, denying or interfering with Plaintiff’s medical care that has been prescribed by 8 a physician and to have Plaintiff receive septoplasty and endoscopic sinus surgery as have already 9 been recommended and requested by several previous doctors.” (ECF No. 6.) In support, Plaintiff 10 11 Motion for Preliminary Injunction provides a brief summary of the facts in support of his motion. Plaintiff asserts that he was assaulted by prison staff on December 3, 2014, which resulted in a 12 fractured right mandible (jaw). He was sent to San Joaquin Community Hospital and, due to 13 conflicting opinions, his injury went untreated. Having no relief from his jaw pain, additional x-rays 14 were completed on December 9, 2014, and indicated a right mandibular fracture. Plaintiff was sent to 15 San Joaquin Hospital a second time, but the injury went untreated due to conflicting opinions. The 16 hospital surgeon, Dr. Michael Freeman, did warn, however, that complications and infections could 17 arise in the future. 18 Beginning in February 2015, Plaintiff began experiencing complications such as nasal 19 congestion, loss of smell, loss of taste, labored breathing and headaches. On August 3, 2015, Plaintiff 20 underwent a CT scan, which showed infection. 21 On October 19, 2015, Plaintiff was examined by an ear, nose, and throat specialist, Dr. 22 Stillwater. Dr. Stillwater confirmed that Plaintiff’s medical condition could be related to the trauma 23 sustained in December 2014. 24 25 On December 7, 2015, Plaintiff underwent a second CT scan, which showed pansinus disease and near complete opacification of ethmoid air cells. 26 On February 29, 2016, Dr. Stillwater diagnosed Plaintiff with a deviated nasal septum and 27 chronic ethmoidal sinusitis with directions of septoplasty and endoscopic sinus surgery if other 28 treatment modalities were not effective. 2 1 On March 7, 2016, Dr. Akanno submitted a physician request for services requesting 2 septoplasty and endoscopic sinus surgery. Despite Dr. Akanno’s order, Defendant C. McCabe had 3 Plaintiff get a second opinion. Plaintiff alleges that this was contrary to the prescribed orders of Drs. 4 Stillwater and Akanno. 5 6 On June 13, 2016, Plaintiff was seen by an ear, nose and throat specialist, Dr. Goodman. Dr. Goodman recommended sinus surgery. 7 Plaintiff contends that although he has been suffering for 20 months, had conclusive diagnoses 8 and three recommendations for septoplasty and endoscopic sinus surgery, he has not received surgery 9 and is suffering daily. 10 A. Standard 11 The purpose of a preliminary injunction is to preserve the positions of the parties until the 12 merits of the action are ultimately determined. Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 13 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). “A plaintiff seeking a preliminary injunction must establish that 14 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 15 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public 16 interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374, 172 L. 17 Ed. 2d 249 (2008). “[A] preliminary injunction is an extraordinary and drastic remedy, one that should 18 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 19 Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (quotations and citations 20 omitted) (emphasis in original). 21 Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court must 22 have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 23 S. Ct. 1660, 75 L. Ed. 2d 675 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of 24 Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). If the court does 25 not have an actual case or controversy before it, it has no power to hear the matter in question. Lyons, 26 461 U.S. at 102. Thus, “[a] federal court may issue an injunction [only] if it has personal jurisdiction 27 over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the 28 3 1 rights of persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 2 (9th Cir. 1985). 3 The pendency of this action does not give the Court jurisdiction over prison officials in 4 general. Summers v. Earth Island Institute, 555 U.S. 488, 491–93, 129 S. Ct. 1142, 173 L. Ed. 2d 1 5 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is 6 limited to the parties in this action and to the viable legal claims upon which this action is proceeding. 7 Summers, 555 U.S. at 491–93; Mayfield, 599 F.3d at 969. B. 8 Plaintiff seeks a preliminary injunction against the staff at Corcoran State Prison related to his 9 10 Analysis medical treatment. However, Plaintiff has not met the requirements for this relief. 11 The Court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s 13 complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state 14 a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is 15 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii). 16 In this matter, Plaintiff’s most-recent amended complaint has been screened and the Court 17 determined that he has not yet stated any cognizable claims. No defendant has been ordered served, 18 and no defendant has yet made an appearance. Thus, the Court at this time lacks personal jurisdiction 19 over the prison officials at Corcoran State Prison, and it cannot issue an order requiring them to take 20 any action. 21 Further, Plaintiff is now housed at the California Substance Abuse and Treatment Facility, and 22 is no longer incarcerated at Corcoran State Prison. As a result, his claim for injunctive relief against 23 the medical staff or officials employed at Corcoran State Prison is likely moot. See Holt v. Stockman, 24 2012 WL 259938, *6 (E.D. Cal. Jan. 25, 2012) (a prisoner’s claim for injunctive relief is rendered 25 moot when he is transferred from the institution whose employees he seeks to enjoin); see also 26 Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007). 27 /// 28 /// 4 1 III. 2 Accordingly, the Court HEREBY RECOMMENDS that Plaintiff's motion for a preliminary 3 Conclusion and Recommendation injunction (ECF No. 6) be DENIED. 4 These Findings and Recommendation will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 6 days after being served with these Findings and Recommendation, Plaintiff may file written objections 7 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 9 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson 10 v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 11 1991)). 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara July 18, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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