Mario Amador Gonzalez v. Warden Soto et al

Filing 111

FINDINGS and RECOMMENDATIONS recommending that 109 Plaintiff's Request for a Preliminary Injunction be DENIED re 25 Amended Complaint and ORDER DENYING Plaintiff's Request for Video of Deposition signed by Magistrate Judge Erica P. Grosjean on 4/9/2018. Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
REQUEST FOR A PRELIMINARY
INJUNCTION BE DENIED

Plaintiff,

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Case No. 1:16-cv-01675-DAD-EPG (PC)

MARIO AMADOR GONZALEZ,

v.
DR. SCHARFFENBERG and R.N. S.
SOTO,

OBJECTIONS TO FINDINGS AND
RECOMMENDATIONS, IF ANY, DUE
WITHIN TWENTY-ONE DAYS

Defendants.

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ORDER DENYING PLAINTIFF’S REQUEST
FOR VIDEO OF DEPOSITION

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(ECF NO. 109)

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Mario Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On April 5, 2018, Plaintiff filed a

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motion for video of deposition and for a preliminary injunction (“the Motion”) (ECF No. 109).

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For the reasons laid out below, the Court will recommend that Plaintiff’s request for a

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preliminary injunction be denied, and will deny Plaintiff’s request for a copy of the video of his

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deposition, without prejudice.

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I.

REQUEST FOR PRELIMINARY INJUNCTION
Plaintiff alleges that his medical and dental treatment has stopped, except for his stomach

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and depression medication. Plaintiff alleges that the Office of the Attorney General is behind the

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lack of medical care. Plaintiff requests that he be provided with a T.E.N.S. unit.

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A federal district court may issue emergency injunctive relief only if it has personal

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jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros.,

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Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party

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officially, and is required to take action in that capacity, only upon service of summons or other

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authority-asserting measure stating the time within which the party served must appear to

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defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g.,

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Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d

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719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive

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relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under

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Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,”

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their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active

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concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

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

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Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is

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narrowly drawn, extends no further than necessary to correct the violation of the Federal Right,

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and is the least intrusive means necessary to correct the violation of the Federal Right.”

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On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is

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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

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public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that

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irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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Plaintiff’s request for a preliminary injunction will be denied. As laid out in the findings

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and recommendations on Plaintiff’s prior motion for a preliminary injunction (ECF No. 100, pgs.

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3-4), the Court does not have jurisdiction over non-parties at an institution Plaintiff was not
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incarcerated at during the events alleged in the complaint. As to Plaintiff’s allegations regarding

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the Office of the Attorney General, Plaintiff has submitted no evidence to support his allegations.
Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s request for a preliminary

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injunction be DENIED.

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These findings and recommendations will be submitted to the United States district court

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judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within

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twenty-one (21) days after being served with a copy of these findings and recommendations, any

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party may file written objections with the court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any

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reply to the objections shall be served and filed within seven (7) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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

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II.

REQUEST FOR VIDEO OF DEPOSITION

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Plaintiff alleges that “alot [sic] of [his] testimony @ deposition is missing or has

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substituted words or incomplete sentences.” (ECF No. 109, p. 1). This concerns Plaintiff, so he

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requests “a court order to produce the video of [his] deposition so the courts can protect in the

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interest of justice.” (Id.).

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Plaintiff’s motion will be denied without prejudice. The Federal Rules of Civil Procedure

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already provide a mechanism for correcting errors in deposition transcripts. Federal Rule of Civil

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Procedure 30(e) states:

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(1) Review; Statement of Changes. On request by the deponent or a
party before the deposition is completed, the deponent must be
allowed 30 days after being notified by the officer that the transcript
or recording is available in which:

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(A) to review the transcript or recording; and

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(B) if there are changes in form or substance, to sign a statement
listing the changes and the reasons for making them.

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(2) Changes Indicated in the Officer's Certificate. The officer must

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note in the certificate prescribed by Rule 30(f)(1) whether a review
was requested and, if so, must attach any changes the deponent
makes during the 30-day period.

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As Plaintiff already has a way to note the errors that he has identified, there appears to be

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no need for the Court to order the video of the deposition to be produced. However, as there may

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in the future be an issue regarding whether Plaintiff’s corrections are accurate, Plaintiff’s request

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will be denied without prejudice to Plaintiff asking for production of the video if it becomes

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relevant (at this time the transcript has not been submitted to the Court in connection with any

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motion).

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Accordingly, based on the foregoing, IT IS ORDERED that Plaintiff’s request for the
video of his deposition is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

April 9, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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