Wilson v. Nesbeth et al

Filing 53

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/8/11 ORDERING that Plaintiff's MOTION for a Temporary Restraining Order 51 construed as a Protective Order is DENIED. Within 14 days of service of this order Plaintiff shall to the best of his ability file a pretrial statement as discussed in the 1/18/11, further Scheduling Order. The Jury Trial is RESCHEDULED for Monday, 1/9/2012 at 09:00 AM before Judge Kimberly J. Mueller. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WAYNE WILSON,

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Plaintiff,

No. CIV S-06-1139 KJM GGH P

vs.
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W.C. NESBETH, et al.,

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Defendants,
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ORDER
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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

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1983. On January 18, 2011, the undersigned issued a further scheduling order which indicated

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that trial was scheduled for January 10, 2012, and plaintiff was to file his pretrial statement and

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any motions necessary to obtain the attendance of witnesses at trial on or before August 26, 2011.

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Plaintiff has not filed a pretrial statement, but on August 26, 2011, plaintiff filed a motion for a

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temporary restraining order. Doc. 51. In addition, the jury trial is rescheduled for Monday,

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January 9, 2012, at 9:00 am before Judge Kimberly J. Mueller.

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Protective Order

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The court construes plaintiff’s motion for injunctive relief as a motion for a

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protective order. Local Rule 302 of the Eastern District of California permits magistrate judges

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to handle all aspects of a prisoner’s case short of jury trial. It has also been interpreted as
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authorizing magistrate judges to issue orders under § 636(b)(1)(A) for non-dispositive motions or

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motions not involving injunctive relief. See also United States v. Raddatz, 447 U.S. 667, 673,

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100 S. Ct. 2406, 2411 (1980) (magistrate judge may hear any pretrial matter except “dispositive”

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motions).

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Clearly, the request addressed in plaintiff’s motion does not seek dispositive relief

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on the merits of the complaint. The motion is addressed to procedures that the parties must

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utilize in litigating this case. See United States v. Flaherty, 666 F.2d 566, 586 (1st Cir. 1981): “A

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pretrial matter within the magistrate’s jurisdiction would thus seem to be a matter unconnected to

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issues litigated at trial and not defined with respect to the time of trial.” Neither do the rulings

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herein involve injunctive relief.

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As in nearly all rulings of magistrate judges pursuant to 28 U.S.C. § 636(b)(1)(A),

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parties are told to do something or not do something. For example, in typical discovery motions,

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parties are compelled to answer interrogatories, answer a question or produce a document despite

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a claim of privilege, attend a deposition at a certain tine or place, be compelled to undergo a

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medical examination, pay costs associated with discovery in a cost-shifting sense. No one would

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think of asserting that such non-dispositive orders are invalid because they command or disallow

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a certain activity. Therefore, the fact that parties are directed in their activities by a magistrate

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judge, cannot, without more, transform the matter at hand into an “injunctive” relief situation

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governed by § 636(b)(1)(B). See e.g., Grimes v. City and County of San Francisco, 951 F.2d 236

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(9th Cir. 1991) (magistrate judge may compel a party to pay prospective sanctions of $500.00 per

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day during period for non-compliance with discovery orders); Rockwell Int. Inc. V. Pos-A-

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Traction Indus., 712 F.2d 1324, 1325 (9th Cir. 1983) (magistrate judge had jurisdiction to order

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witnesses to answer questions); United States v. Bogard, 846 F.,2d 563, 567 (9th Cir. 1988)

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superseded by rule on unrelated matter, Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174

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(9th Cir. 1996) (magistrate judge may deny requests to see jury selection materials); New York v.

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United States Metals Roofing Co., 771 F.2d 796 (3rd Cir. 1985) (magistrate judge may prevent a
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party from releasing discovery information to the public; specifically held not to be an injunction

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beyond the authority of a magistrate judge); Affelt v. Carr, 628 F. Supp. 1097, 1101 (N.D. Oh.

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1985) (issuance of gag orders and disqualification of counsel are duties permitted to a magistrate

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judge.). It is only where the relief sought goes to the merits of plaintiff’s actions or to complete

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stays of an action are orders under § 636(b)(1)((A) precluded. See e.g. Reynaga v. Camisa, 971

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F.2d 414 (9th Cir. 1992); compare United States Metals etc., 771 F.2d at 801 (orders which

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restrain or direct the conduct of the parties are not to be characterized as an appealable injunction

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beyond the authority of the magistrate judge unless the restraint goes to the merits of the action).

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In other words, a motion for injunctive relief must relate to the allegations in the complaint. If

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there is no relation, it is not an injunctive relief situation. A party seeking preliminary injunctive

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relief “must necessarily establish a relationship between the injury claimed in the party’s motion

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and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th

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Cir.1994). In other words, plaintiff must seek injunctive relief related to the merits of his

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underlying claim.

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Moreover, the rule that governs interlocutory injunctions, Fed. R. Civ. P. 65, also

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indicates that the matters at issue have to be encompassed by the complaint, e.g., provision which

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allows the hearing on preliminary injunction to be accelerated into a trial on the merits,

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preserving the right to jury trial if otherwise appropriate, making evidence received at the hearing

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on preliminary injunction admissible at trial. None of the provisions would make sense if

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disputes outside the complaint, and on which no trial by definition will be had, could be

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considered as proceedings for injunctions. In addition, the standards for granting injunctions are

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much different than the standards applicable to protective orders. Applying established standards

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on the need to grant an injunction only in extraordinary circumstances, absence of legal remedy,

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balance of hardships, irreparable harm, and so forth are foreign to resolution of discovery and

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other procedural disputes which crop up in the course of a litigation.

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In the instant case, plaintiff’s requests do not go the merits of plaintiff’s action.
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Accordingly, this matter may be handled by court order. Plaintiff states that since his placement

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in Administrative Segregation on July 7, 2011, he has been denied his legal materials and has

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only been allowed to the library once. Plaintiff does not describe any specific adverse results

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other than generally stating his court access has been “chilled.” Nor does plaintiff make any

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reference to his pretrial statement that has not been submitted. The court also notes that plaintiff

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filed the exact same motion for a temporary restraining order on the same date in Wilson v.

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Tilton, 07-cv-1193 GEB DAD, Doc. 80. As a result it does not appear that plaintiff was

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specifically addressing the pretrial statement.

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Regardless, plaintiff has not shown that he needs library access or his legal

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materials to complete a pretrial statement. There is only one claim in this case and only one

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defendant and plaintiff has failed to make specific showing regarding the pretrial statement. In

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addition, plaintiff has known for nearly seven months about the pretrial statement, so it is not

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clear why he did not complete it prior to being placed in administrative segregation or file this

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motion until the due date of the pretrial statement

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Plaintiff’s motion for a temporary restraining order construed as a protective order

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is denied. Within 14 days of service of this order plaintiff shall to the best of his ability file a

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pretrial statement as discussed in the January 18, 2011, further scheduling order.1 Failure to file a

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pretrial statement will result in a recommendation that this action be dismissed.

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Accordingly, IT IS HEREBY ORDERED that

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1. Plaintiff’s motion for a temporary restraining order (Doc. 51) construed as a

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protective order is denied;

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2. Within 14 days of service of this order plaintiff shall to the best of his ability

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file a pretrial statement as discussed in the January 18, 2011, further scheduling order. Failure to

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file a pretrial statement will result in a recommendation that this action be dismissed.

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If the court requires more information after a pretrial statement has been filed, then the
issue of plaintiff’s legal materials will be addressed.
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3. The jury trial is rescheduled for Monday, January 9, 2012, at 9:00 am

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before Judge Kimberly J. Mueller.

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DATED: September 8, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
wils1139.po

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