Gipbsin v. Deforest, Goni, Prater, Shelton and Stone

Filing 274

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/23/15 denying 268 Motion to Compel. Also, RECOMMENDING that plaintiff's motion for a preliminary injunction 272 be denied. MOTION for PRELIMINARY INJUNCTION 272 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:07-cv-0157-MCE-EFB P

ORDER AND FINDINGS AND
RECOMMENDATIONS

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed a motion to compel discovery and a motion for a preliminary

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injunction. As explained below, both motions must be denied.

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I.

Motion to Compel
Plaintiff seeks four specific documents or categories of documents through the instant

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motion to compel: (1) transcript of the Ninth Circuit oral argument on plaintiff’s appeal; (2)

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transcript of plaintiff’s deposition taken on August 28, 2015; (3) transcript of plaintiff’s August

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12, 2005 use-of-force interview; and (4) “any and all other evidence, documents that . . . have not

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already [been] provided to plaintiff.” ECF No. 268 at 2.

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As the moving party, plaintiff bears the burden of informing the court of (1) which

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discovery requests are the subject of his motion to compel, (2) which of defendants’ responses are

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disputed, (3) why he believes defendants’ responses are deficient, (4) why defendants’ objections

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are not justified, and (5) why the information he seeks through discovery is relevant to the
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prosecution of this action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343 JAM EFB P, 2009

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U.S. Dist. LEXIS 9568, (E.D. Cal. Feb. 10, 2009) (“Without knowing which responses plaintiff

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seeks to compel or on what grounds, the court cannot grant plaintiff's motion”); Ellis v. Cambra,

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No. CIV 02-05646-AWI-SMS PC, 2008 U.S. Dist. LEXIS 109050 (E.D. Cal. Mar. 27, 2008)

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(“Plaintiff must inform the court which discovery requests are the subject of his motion to

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compel, and, for each disputed response, inform the court why the information sought is relevant

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and why Defendant’s objections are not justified.”).

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Plaintiff’s motion must be denied for several reasons. First, the motion fails to state how
or why defendants’ responses to his discovery were inadequate. Indeed, it is unclear from the

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motion whether plaintiff even requested these documents from defendants through discovery in

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the first place. Second, the court cannot compel defendants to produce documents that do not

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exist. According to defendants, there is no transcript of the Ninth Circuit oral argument hearing

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or of plaintiff’s use-of-force interview, and it is unclear what “other” evidence and documents

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plaintiff seeks. See ECF No. 271 at 2-3. Plaintiff did not file a reply brief or otherwise clarify

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his request in this regard. Lastly, defendants represent that they served plaintiff with a copy of

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the condensed transcript of his August 2015 deposition. Id. at 3. Thus, defendants have produced

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to plaintiff the only document sought that is known to exist. For these reasons, plaintiff’s motion

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to compel is denied.

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II.

Motion for Preliminary Injunction
Plaintiff also seeks a preliminary injunction in the form of a court order for “the attorney

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general office to personally enter the prison and expunge all [of plaintiff’s] rule violation reports,

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. . . a one way ticket to any state . . . and [for plaintiff] to walk out from the court . . . as a paroled

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youth offender.” ECF No. 272.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,
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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Here, plaintiff has not shown a likelihood of success on the merits. He alleges that on

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August 12, 2005, defendants Deforest, Goni, Prater, Shelton, and Stone retaliated against him,

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through acts of intimidation and excessive force, because he requested a religious dietary meal

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and had filed prior lawsuits. See ECF No. 24 at 6-7; ECF No. 182; ECF No. 259. Apart from

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plaintiff’s unsupported allegations, there is no evidence establishing that plaintiff is likely to

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prevail on these First Amendment claims, or that the injunction sought is necessary to preserve

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the court’s ability to grant effective relief on those claims and that it is the least intrusive means

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for doing so. Moreover, a writ of habeas corpus is plaintiff’s “exclusive remedy” to the extent he

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seeks release from prison. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995)

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(per curiam). For these reasons, plaintiff’s motion must be denied.

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III.

Order and Recommendation
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 268)

is denied.
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Further, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary
injunction (ECF No. 272) be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: December 23, 2015.

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