King v. Villegas et al

Filing 40

FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's 26 Motion for Preliminary Injunction/Temporary Restraining Order be Denied, signed by Magistrate Judge Erica P. Grosjean on 11/26/18. Objections, If Any, Due Within Twenty-One Days. Referred to Judge Ishii. (Gonzalez, R)

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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
MOTION FOR PRELIMINARY
INJUNCTION/TEMPORARY RESTRAINING
ORDER BE DENIED

Plaintiff,

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Case No. 1:17-cv-00676-AWI-EPG (PC)

JERRY LEE KING,

v.
R. VILLEGAS and P. CRUZ,

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(ECF NO. 26)

Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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Jerry King (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on “Plaintiff’s

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claims for excessive force in violation of the Eighth Amendment against defendants R. Villegas

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and P. Cruz.” (ECF No. 14, p. 2; ECF No. 20, p. 2). Plaintiff’s claims stem from an alleged

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excessive force incident that occurred on August 17, 2016.

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On June 4, 2018, Plaintiff filed a motion for a preliminary injunction/temporary

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restraining order (“the Motion”).1 (ECF No. 26). Defendants filed their opposition on September

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21, 2018. (ECF No. 39). The Motion is now before the Court.

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As Defendants were provided notice of the Motion and were given an opportunity to respond, the Court
will treat the Motion as a motion for a preliminary injunction.

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I.

THE MOTION

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Plaintiff asks for a preliminary injunction/temporary restraining order stating that Plaintiff

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not be housed at Kern Valley State Prison or North Kern Valley State Prison, which is where

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Defendants work. Additionally, Plaintiff wants the order to direct that, when Plaintiff must go to

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court, Plaintiff be picked up at Mule Creek State Prison, taken to court, and then be brought back

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to Mule Creek State Prison the same day.

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Plaintiff states that criminal charges were filed against him. For over a year of court

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proceedings, a Kern Valley State Prison transportation officer picked Plaintiff up, took him to

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court, and then brought him back to his institution of confinement the same day.

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Plaintiff was told he could not be housed in the same prison as Defendants because of
“these cases.” Defendant Cruz stated that he feared for his life, and requested this.

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On May 9, 2018, Plaintiff was transferred to the administrative segregation housing unit at

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Kern Valley State Prison. Plaintiff talked to the sergeant, the lieutenant, and the Warden at

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committee, and they all said that Plaintiff could be housed in administrative segregation at Kern

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Valley State Prison because Plaintiff was “out to court.”

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Plaintiff lives in fear of being beaten again by Defendants. Plaintiff cannot shower or go

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outside because an officer could put a manufactured weapon in his cell and charge him with a

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new crime. Additionally, they could house him with an inmate that may try to kill him, or say

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that Plaintiff tried to attack them to make it look better for the case against Plaintiff.

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Plaintiff fears retaliation because Defendants are being sued and possibly brought up on

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criminal charges, and are facing the loss of their careers. Additionally, they have broken the law

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already by using excessive force. Defendants also have friends, family, and co-workers that work

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at Kern Valley State Prison and North Kern Valley State Prison.

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Plaintiff argues that his mental anguish alone constitutes an “irreparable injury.”

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Additionally, the “balance of hardship” weights in Plaintiff’s favor because defendant Cruz

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already requested that Plaintiff not be housed at Kern Valley State Prison. Finally, it is in the

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public interest for the Court to grant the injunction to keep Plaintiff safe, as well as prison

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personnel and government officials.
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II.

DEFENDANTS’ OPPOSITION

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Defendants argue that Plaintiff’s motion should be denied because he has failed to

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establish that he is likely to suffer irreparable harm in the absence of preliminary relief, and

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because Plaintiff seeks relief against a non-party.

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Defendants state that Plaintiff is not an inmate at Kern Valley State Prison. He is housed

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at Mule Creek State Prison, but is housed in administrative segregation at Kern Valley State

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Prison when he is out-to-court. Defendants do not work in the segregated housing unit, and so far

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there have been no documented incidents with respect to Plaintiff while he was housed at Kern

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Valley State Prison for his out-to-courts.

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“While Plaintiff imagines several ways” in which Defendants’ and their friends, family,

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and/or co-workers “might retaliate against him, including planting a weapon in his cell and then

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criminally charging him for possessing it, he has alleged no facts, and provided no evidence to

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suggest, that such retaliation is likely to occur.” (ECF No. 39, p. 5).

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Moreover, Plaintiff requests an injunction directed at the California Department of

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Corrections and Rehabilitation (“CDCR”). However, the CDCR is not a party to this action.

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Thus, the Court does not have jurisdiction to issue an injunction/temporary restraining order.

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III.

LEGAL STANDARDS

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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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IV.

ANALYSIS

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The Court will recommend that the Motion be denied. As explained above and pointed

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out by Defendants, a plaintiff seeking a preliminary injunction must establish that he is likely to

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suffer irreparable harm in the absence of preliminary relief. Here, Plaintiff’s allegations of

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irreparable harm revolve around Plaintiff’s fear of retaliation. However, Plaintiff has submitted

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no evidence that Defendants (or their friends, family, and/or co-workers) have, or plan to,

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retaliate against Plaintiff. In fact, Plaintiff has not even alleged that there have been attempts to

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retaliate against Plaintiff, that there have been threats of retaliation, or that Defendants have a

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history of retaliating against prisoners who filed lawsuits against them.

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understands why Plaintiff is afraid of being housed in the institution where Defendants work,

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Plaintiff’s fear of retaliation is not enough to establish a likelihood that he will suffer irreparable

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harm in the absence of preliminary relief.

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V.

While the Court

CONCLUSION AND RECOMMENDATION
As Plaintiff has failed to show a likelihood of irreparable harm in the absence of

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preliminary relief, the Court finds that the Motion should be denied.

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HEREBY RECOMMENDED that Plaintiff’s motion for a preliminary injunction/temporary
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Accordingly, IT IS

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restraining order be DENIED.

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

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

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(21) days after being served with a copy of these findings and recommendations, any party may

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

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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

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parties are advised that failure to file objections within the specified time may result in the waiver

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of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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

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IT IS SO ORDERED.
Dated:

November 26, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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