(PC) Dilbert v. Fisher

Filing 25

FINDINGS and RECOMMENDATIONS to deny Plaintiff's Motion for TRO 24 signed by Magistrate Judge Sheila K. Oberto on 8/1/2022. Referred to Judge Dale A. Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLIFFORD ALAN DILBERT,

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Plaintiff,

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v.
R. FISHER,

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Case No.: 1:22-cv-00247-DAD SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER
(Doc. 24)

Defendant.

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Plaintiff Clifford Alan Dilbert is proceeding pro se in this civil rights action brought
pursuant to 42 U.S.C. § 1983.
I.

INTRODUCTION
On July 13, 2022, Plaintiff filed a document titled “Motion to the Court to take Judicial

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Notice in the above listed case.” (Doc. 24.) Given the substance of the motion, the Court

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construes Plaintiff’s filing to be a motion for temporary restraining order and addresses the

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motion accordingly.

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In his motion, Plaintiff seeks immediate release from Valley State Prison, contending the

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response of the California Department of Corrections and Rehabilitation (CDCR) to the COVID-

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19 pandemic violates his Eighth Amendment right to be free from cruel and unusual punishment

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and from deliberate indifference. (Doc. 24 at 2.) He contends there is an ongoing failure by

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CDCR to protect inmates such as himself from the devastating effects of COVID-19, specifically

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pointing to unvaccinated staff, inadequate steps to mitigate the spread of the virus, transfer

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policies, faulty rapid testing procedures and quarantine policies. (Id. at 2-4.) Plaintiff contends

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that he contracted COVID in 2020 and has long COVID symptoms “from both the infection and

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the side effects of the second Moderna vaccine,” which “may prove fatal” for him. (Id. at 3.)

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Plaintiff contends “the only reasonable and compassionate decision” would be for this Court to

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release Plaintiff. (Id. at 3, 4.)

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II.

DISCUSSION

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A. Legal Standards

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” 1 Winter

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a

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preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to

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

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favor, and that an injunction is in the public interest.” Id. at 20.

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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 matter, it

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have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983);

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Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S.

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464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no

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power to hear the matter in question. Id. Requests for prospective relief are further limited by 18

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U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find

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the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation

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of the Federal right, and is the least intrusive means necessary to correct the violation of the

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Federal right.”

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Furthermore, the pendency of this action does not give the Court jurisdiction over prison
officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491-93 (2009); Mayfield v.

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“The standard for a [temporary restraining order] is the same as for a preliminary injunction.” Rovio
Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1092 (N.D. Cal. 2012) (citing Stuhlbarg Int’l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (citation omitted).
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United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court's jurisdiction is limited to the parties

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in this action and to the viable legal claims upon which this action is proceeding. Summers, 555

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U.S. at 491-93; Mayfield, 599 F.3d at 969.

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A “federal court may issue an injunction [only] if it has personal jurisdiction over the

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

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persons not before the court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). “[A]n

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injunction must be narrowly tailored ‘to affect only those persons over which it has power,’ . . .

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and to remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible

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breaches of the law.’” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting

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Zepeda, 753 F.2d at 727, 728 n.1).

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B. Analysis

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As an initial matter, the court notes that Plaintiff cannot obtain a temporary restraining

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order compelling his release from incarceration.

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Plaintiff brings this action under 42 U.S.C. § 1983. Section 1983 provides a remedy for

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the violation of constitutional rights by any person acting under color of state law. 42 U.S.C. §

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1983; see, e.g., Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Long v. County

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of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Section 1983 is not a vehicle for challenging

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the validity of confinement. See, e.g., Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (citing

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Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir.

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2016). Complaints for relief turning on the circumstances of a prisoner's confinement may be

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brought in a § 1983 action. See Skinner, 562 U.S. at 533--34; Nettles, 830 F.3d at 927.

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The exclusive remedy for a prisoner seeking immediate or speedier release from

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confinement, however, is a writ of habeas corpus. See Skinner, 562 U.S. at 533-34; Preiser v.

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Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or

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duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled

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to immediate release or a speedier release from that imprisonment, his sole federal remedy is a

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writ of habeas corpus”). Because a habeas petition is the exclusive method by which a prisoner

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may seek release from custody, a temporary restraining order or injunction ordering a prisoner's
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release in a civil rights action is inappropriate. See, e.g., Bryant v. Kibler, No. 2:21-CV-0060-

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TLN-DMC-P, 2021 WL 1423796, at *2 (E.D. Cal. Apr. 15, 2021). If Plaintiff wishes to challenge

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the fact or duration of his confinement, he may file a petition for a writ of habeas corpus.
Moreover, no defendant in this action has been served with process. Plaintiff’s complaint

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names “CDCR” and “Warden R. Fisher” as defendants. (Doc. 1 at 1, 2.) Plaintiff’s complaint has

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not yet been screened pursuant to 28 U.S.C. § 1915A(a) and will be screened in due course.

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Service of process will only occur following screening and a finding that Plaintiff has stated one

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or more cognizable claims. Unless and until the defendants have been served with process, this

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Court lacks personal jurisdiction over any defendant, and may not grant the injunctive relief

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Plaintiff requests. See Fed. R. Civ. P. 65(d)(2); Murphy Bros., Inc. v. Michetti Pipe Stringing,

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Inc., 526 U.S. 344, 350 (1999).

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Additionally, Plaintiff cannot meet all four Winter factors required for an injunction.

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Winter, 555 U.S. at 20. Even liberally construing Plaintiff’s motion as demonstrating Plaintiff is

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likely to suffer irreparable harm in the absence of preliminary relief, Plaintiff cannot establish he

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is likely to succeed on the merits—a requirement that must be met to obtain injunctive relief.

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Winter, 555 U.S. at 20. As noted above, Plaintiff’s complaint has not yet been screened. It is

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therefore unclear whether Plaintiff has stated cognizable claims entitling him to relief in these

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proceedings. Without such a finding, the court cannot determine the likelihood of success on the

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merits.

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Regarding the requirement that Plaintiff make a showing that the balance of equities tips

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in his favor, Winter, 555 U.S. at 20, the court notes that CDCR has an important interest in

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reducing the spread of COVID-19—particularly in the prison context where inmates are celled in

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close proximity to one another. See, e.g., Sanford v. Easton, No. 1:20-cv-0792 BAM PC, 2021

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WL 1172911, at *7 (E.D. Cal. Mar. 20, 2021) (“’by their very nature, prisons are confined spaces

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unsuited for social distancing’” [quoting Evdokimow v. Doll, No. 4:21-CV-00261, 2021 WL

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767554, at *6 (M.D. Pa. Feb. 26, 2021)]). At a minimum, Plaintiff cannot make the required

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showing that the balance of equities weigh in his favor at this time.

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//
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Because Plaintiff cannot meet two of the four Winter factors required for an injunction,

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the court need not address the final factor: whether such an injunction is in the public interest.

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Winter, 550 U.S. at 20. In sum, Plaintiff is not entitled to the injunctive relief he seeks.

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III.

Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion for temporary

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CONCLUSION AND RECOMMENDATION

restraining order (Doc. 24) be DENIED.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of

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service of these Findings and Recommendations, Plaintiff may file written objections with the

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Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Failure to file objections within the specified time may result in waiver of

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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:

/s/ Sheila K. Oberto

August 1, 2022

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UNITED STATES MAGISTRATE JUDGE

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