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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUPERT FLOWERS,
Plaintiff,
v.
DAVE DAVEY, et al.,

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Defendants.

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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

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I.

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Plaintiff Rupert Flowers (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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September 15, 2016, while incarcerated at Corcoran State Prison.

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Background

On September 26, 2016, Plaintiff filed a motion for preliminary injunction and temporary
restraining order. (ECF No. 6.)

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On December 6, 2016, Plaintiff’s first amended complaint was filed. (ECF Nos. 10.)

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On April 28, Plaintiff filed a Notice of Change of Address, which indicated that he had been

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moved to the California Substance Abuse Treatment Facility. (ECF No. 16.)
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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

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before the Court.

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II.

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Plaintiff seeks a preliminary injunction and temporary restraining order “to have defendants

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abstain from delaying, denying or interfering with Plaintiff’s medical care that has been prescribed by

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a physician and to have Plaintiff receive septoplasty and endoscopic sinus surgery as have already

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been recommended and requested by several previous doctors.” (ECF No. 6.) In support, Plaintiff

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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

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fractured right mandible (jaw).

He was sent to San Joaquin Community Hospital and, due to

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conflicting opinions, his injury went untreated. Having no relief from his jaw pain, additional x-rays

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were completed on December 9, 2014, and indicated a right mandibular fracture. Plaintiff was sent to

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San Joaquin Hospital a second time, but the injury went untreated due to conflicting opinions. The

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hospital surgeon, Dr. Michael Freeman, did warn, however, that complications and infections could

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arise in the future.

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Beginning in February 2015, Plaintiff began experiencing complications such as nasal

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congestion, loss of smell, loss of taste, labored breathing and headaches. On August 3, 2015, Plaintiff

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underwent a CT scan, which showed infection.

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On October 19, 2015, Plaintiff was examined by an ear, nose, and throat specialist, Dr.

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Stillwater. Dr. Stillwater confirmed that Plaintiff’s medical condition could be related to the trauma

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sustained in December 2014.

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On December 7, 2015, Plaintiff underwent a second CT scan, which showed pansinus disease
and near complete opacification of ethmoid air cells.

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On February 29, 2016, Dr. Stillwater diagnosed Plaintiff with a deviated nasal septum and

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chronic ethmoidal sinusitis with directions of septoplasty and endoscopic sinus surgery if other

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treatment modalities were not effective.
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On March 7, 2016, Dr. Akanno submitted a physician request for services requesting

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septoplasty and endoscopic sinus surgery. Despite Dr. Akanno’s order, Defendant C. McCabe had

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Plaintiff get a second opinion. Plaintiff alleges that this was contrary to the prescribed orders of Drs.

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Stillwater and Akanno.

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On June 13, 2016, Plaintiff was seen by an ear, nose and throat specialist, Dr. Goodman. Dr.
Goodman recommended sinus surgery.

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Plaintiff contends that although he has been suffering for 20 months, had conclusive diagnoses

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and three recommendations for septoplasty and endoscopic sinus surgery, he has not received surgery

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and is suffering daily.

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A.

Standard

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The purpose of a preliminary injunction is to preserve the positions of the parties until the

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merits of the action are ultimately determined. Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101

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S. Ct. 1830, 68 L. Ed. 2d 175 (1981). “A plaintiff seeking a preliminary injunction must establish that

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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public

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interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374, 172 L.

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Ed. 2d 249 (2008). “[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.” Mazurek v.

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Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (quotations and citations

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omitted) (emphasis in original).

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Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court must

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have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103

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S. Ct. 1660, 75 L. Ed. 2d 675 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of

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Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). If the court does

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not have an actual case or controversy before it, it has no power to hear the matter in question. Lyons,

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461 U.S. at 102. Thus, “[a] federal court may issue an injunction [only] if it has personal jurisdiction

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over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the

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rights of persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727

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(9th Cir. 1985).

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The pendency of this action does not give the Court jurisdiction over prison officials in

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general. Summers v. Earth Island Institute, 555 U.S. 488, 491–93, 129 S. Ct. 1142, 173 L. Ed. 2d 1

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(2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is

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limited to the parties in this action and to the viable legal claims upon which this action is proceeding.

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Summers, 555 U.S. at 491–93; Mayfield, 599 F.3d at 969.
B.

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Plaintiff seeks a preliminary injunction against the staff at Corcoran State Prison related to his

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Analysis

medical treatment. However, Plaintiff has not met the requirements for this relief.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s

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complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state

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a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).

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In this matter, Plaintiff’s most-recent amended complaint has been screened and the Court

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determined that he has not yet stated any cognizable claims. No defendant has been ordered served,

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and no defendant has yet made an appearance. Thus, the Court at this time lacks personal jurisdiction

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over the prison officials at Corcoran State Prison, and it cannot issue an order requiring them to take

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any action.

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Further, Plaintiff is now housed at the California Substance Abuse and Treatment Facility, and

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is no longer incarcerated at Corcoran State Prison. As a result, his claim for injunctive relief against

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the medical staff or officials employed at Corcoran State Prison is likely moot. See Holt v. Stockman,

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2012 WL 259938, *6 (E.D. Cal. Jan. 25, 2012) (a prisoner’s claim for injunctive relief is rendered

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moot when he is transferred from the institution whose employees he seeks to enjoin); see also

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Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007).

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III.

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Accordingly, the Court HEREBY RECOMMENDS that Plaintiff's motion for a preliminary

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Conclusion and Recommendation

injunction (ECF No. 6) be DENIED.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendation, Plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson

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v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 18, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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