Scott v. McDonald
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/5/11 ORDERING that the Clerk randomly assign a district judge to this action. It is RECOMMENDED that 51 MOTION for injunctive relief be denied. Motion referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HOWARD SCOTT
Plaintiff,
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vs.
M. MCDONALD, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.
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No. CIV S-09-0851 EFB P
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
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brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302
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pursuant to 28 U.S.C. § 636(b)(1). Before the court is plaintiff’s motion for injunctive relief. He
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alleges that defendant Medina is harassing him, causing him to fear for his life, and requests that
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he be transferred out of High Desert State Prison. Plaintiff alleges that on or around July 8, 2011
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Medina took away his wheelchair, and that he cannot use the walker that was provided to him
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because he is blind and his back and hand are injured. Plaintiff alleges he is bound to his cell as
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a result.
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A preliminary injunction will not issue unless necessary to prevent threatened injury that
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would impair the court’s 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,
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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a
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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127
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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth
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Circuit Court of Appeals has also held that the “sliding scale” approach it applies to preliminary
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injunctions as it relates to the showing a plaintiff must make regarding his chances of success on
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the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 632
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F.3d 1127, at 1134-35 (9th Cir. 2011). Under this sliding scale the elements of the preliminary
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injunction test are balanced. As it relates to the merits analysis, a stronger showing of
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irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.
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Id.
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In cases brought by prisoners involving conditions of confinement, any preliminary
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injunction “must be narrowly drawn, extend no further than necessary to correct the harm the
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court finds requires preliminary relief, and be the least intrusive means necessary to correct the
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harm.” 18 U.S.C. § 3626(a)(2).
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In the court’s April 7, 2011 order reviewing the complaint pursuant to 28 U.S.C.
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§ 1915A, the court found that plaintiff had stated the following potentially cognizable claims:
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1) an ADA claim and an Eighth Amendment claim against defendants Sharrb, Cooper, Oateman,
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and Nelson, for refusing to either feed plaintiff in his cell or to provide plaintiff with assistance
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to the chow hall (allegedly two miles round trip); 2) an Eighth Amendment claim against
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defendant Medina for stopping plaintiff’s heart and seizure medications, and for ordering his
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subordinates to confiscate plaintiff’s mobility vest and cane; 3) an Eighth Amendment claim
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against defendant Betty for failing to protect plaintiff from the water leak in his cell, for refusing
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to help plaintiff obtain medical attention, and for moving plaintiff to a second tier; and 4) an
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Eighth Amendment claim against defendant Barron for moving plaintiff to a second tier and for
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slamming plaintiff into the wall when plaintiff objected to the move.
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Although these allegations may be adequate to state a claim, they have not been
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adequately demonstrated with evidence sufficient to show that plaintiff is likely to prevail on the
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merits. Unlike the § 1915A screening process, plaintiff’s allegations are not assumed to be true
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on this motion for a preliminary injunction. To succeed on this motion, plaintiff must support
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his allegations with evidence. While plaintiff claims to need a wheelchair, he also alleges that
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two doctors, Medina and Miranda, have told him that his medical condition does not require a
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wheelchair. It is well established that mere differences of opinion concerning the appropriate
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treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d
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330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). At this stage
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in the proceedings, plaintiff has failed to demonstrate more than his disagreement with the
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opinions of medical staff regarding his appropriate medical treatment.
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Moreover, even if plaintiff could demonstrate a likelihood of success on the merits,
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plaintiff also fails to show that the balance of equities and public interest weigh in favor of a
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preliminary injunction. Further, plaintiff has not adequately demonstrated he is likely to suffer
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irreparable harm in the absence of preliminary relief. The Supreme Court has held that the party
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seeking the injunction must prove that he is likely to suffer irreparable harm in the absence of
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preliminary relief. Winter, 555 U.S. at *22. Although plaintiff alleges Medina is harassing him,
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plaintiff has not shown how Medina or any other official at High Desert State Prison has placed
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his life in danger. While plaintiff’s allegations are disconcerting, he has not produced evidence
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sufficiently showing that he faces a future risk of irreparable harm, or that being transferred out
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of High Desert State Prison is likely to prevent that harm from occurring. Moreover, inmates do
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not have a constitutional right to be housed at a particular facility or institution or to be
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transferred, or not transferred, from one facility or institution to another. Olim v. Wakinekona,
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461 U.S. 238, 244-48 (1983); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam).
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In light of the above, plaintiff’s motion for injunctive relief must be denied.
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Accordingly, it is HEREBY ORDERED that the Clerk randomly assign a district judge to
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this action.
Further, it is HEREBY RECOMMENDED that plaintiff’s July 21, 2011 motion for
injunctive relief 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 5, 2011.
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