Solomon v. Felker et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/12/11: Recommending that 69 MOTION for PRELIMINARY INJUNCTION, 66 MOTION Emergency Injunction Transfer, 67 MOTION and 65 MOTION for Emergency transfer be denied. Objections to F&R due within fourteen days. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VINCENT J. SOLOMON,
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Plaintiff,
No. 2:08-cv-2544 WBS JFM (PC)
vs.
LIEUTENANT SCHIRMER,
et al.,
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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
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42 U.S.C. § 1983. This action is currently proceeding on claims raised against twenty-eight
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defendants named in plaintiff’s first amended complaint, filed December 14, 2009. By order
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filed concurrently with these findings and recommendations, plaintiff’s first amended complaint
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was dismissed with leave to file a second amended complaint.
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Plaintiff has filed four motions for injunctive relief seeking court orders requiring
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prison officials to transfer him to a different prison. Plaintiff alleges his safety is threatened by
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his present placement, he has been shot in the leg and sprayed with pepper spray, he is suffering
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retaliation by correctional officers, and he is unable to get legal materials to prosecute this action.
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The legal principles applicable to a request for injunctive relief are well
established. To prevail, the moving party must show either a likelihood of success on the merits
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and the possibility of irreparable injury, or that serious questions are raised and the balance of
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hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122
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F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,
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1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal
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point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under
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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of
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irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the
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court need not reach the issue of likelihood of success on the merits. Id.
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In cases brought by prisoners involving conditions of confinement, any
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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
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harm the court finds requires preliminary relief, and be the least intrusive means necessary to
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correct the harm.” 18 U.S.C. § 3626(a)(2).
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Initially, the principal purpose of preliminary injunctive relief is to preserve the
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court's power to render a meaningful decision after a trial on the merits. See C. Wright & A.
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Miller, 11 Federal Practice and Procedure, §2947 (1973). In addition to demonstrating that he
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will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must
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show a "fair chance of success on the merits" of his claim. Sports Form, Inc. v. United Press
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International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of
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International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir.
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1979). Implicit in this required showing is that the relief awarded is only temporary and there
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will be a full hearing on the merits of the claims raised in the injunction when the action is
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brought to trial.
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In addition, as a general rule this court is unable to issue an order against
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individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine
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Research, Inc., 395 U.S. 100 (1969).
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Several of the allegations of the motions at bar arise from events that occurred in
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2011, well after the 2007 incidents on which the action at bar is based. The allegations in the
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motions are all based on events at California Correctional Institution in Tehachapi, California,
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while the instant action arose from alleged events at High Desert State Prison. To the extent the
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motions are based on claims that are not cognizable as part of the underlying action, they will not
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be given a hearing on the merits at trial.
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The motions also implicate plaintiff’s right to access the courts. In Lewis v.
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Casey, 518 U.S. 343 (1996), the United States Supreme Court held that prison inmates have a
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constitutionally protected right to access the courts to bring civil rights actions to challenge their
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conditions of confinement and to bring challenges to their criminal convictions. Lewis v. Casey,
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518 U.S. at 351. The right of access to the courts “guarantees no particular methodology but
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rather the conferral of a capability -- the capability of bringing contemplated challenges to
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sentences or conditions of confinement before the courts.” Id. at 356. In order to demonstrate a
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cognizable threat to this right, plaintiff must present evidence that defendants by their acts will
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prevent him from bringing, or cause him to lose, an actionable claim of this type. Id.
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Plaintiff has not made the required showing on the motions at bar. Specifically,
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the record before this court does not support a finding that plaintiff is threatened with irreparable
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harm to his ability to litigate this action.
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For the foregoing reasons, plaintiff’s motions for injunctive relief should be
denied.
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In accordance with the above, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s March 10, 2011 motion for emergency transfer be denied.
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2. Plaintiff’s April 25, 2011 motion for emergency injunction be denied.
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3. Plaintiff’s May 10, 2011 motion for emergency injunction be denied.
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4. Plaintiff’s June 24, 2011 motion for emergency injunction be denied.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days 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.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 12, 2011.
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