Bjorlin v. Hubbard et al

Filing 23

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/26/10 ORDERING that plaintiff's 21 Motion for Extension of Time is GRANTED. Plaintiff is granted until 3/31/10 to return copies and forms; Clerk directed to provide plaintiff with 6 additional USM-285 forms. It is further RECOMMENDED that plaintiff's 13 Motion for Injunctive Relief be DENIED. Objections due with 21 days of service. (cc: Monica Anderson) (Owen, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The court directed the Court Clerk to serve the motion for preliminary injunctive relief upon the Attorney General's Office as well as upon defendants Callison and McDonald and, in addition to a response, ordered the Attorney General and defendants to ascertain plaintiff's safety and take any necessary steps to assure his safety. See docket # 15. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DANIEL P. BJORLIN, Plaintiff, vs. T. HUBBARD, et al., Defendants. / Introduction Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for injunctive relief, filed on January 27, 2010, to which, although no defendant had yet been served, this court ordered a response by two of the named defendants, Callison (spelled as Calison in the order) and McDonald, within seven days, by Order, filed on February 4, 2010 (docket # 15).1 which response was timely filed on February 16, 2010 (docket # 20) by the Attorney-General's Office. \\\\\ ORDER & FINDINGS AND RECOMMENDATIONS No. CIV S-09-1793 GEB GGH P

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TRO/Motion for Preliminary Injunction As the court stated in its Order, filed on February 4, 2010 (docket # 15), plaintiff has brought a "motion for injunction relief," which he apparently intends to be a motion for a temporary restraining order (TRO) or preliminary injunctive relief, declaring that he is in fear for his life and that his life has been threatened. Motion, pp. 1-2. TRO The purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary restraining order due to the fact that very few such orders can be appealed prior to the hearing on a preliminary injunction. It is apparent, however, that requests for temporary restraining orders which are not ex parte and without notice are governed by the same general standards that govern the issuance of a preliminary injunction.2 See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the emphasis of the court is directed to irreparable harm and the balance of hardships because the merits of a controversy are often difficult to ascertain and adjudicate on short notice. Preliminary Injunction Standard "The proper legal standard for preliminary injunctive relief requires a party to demonstrate `that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an To the extent that this purports to be an ex parte motion for a TRO without notice, the undersigned notes that there are stringent requirements to be imposed under Fed. R. Civ. P. 65 for issuance of such an order, which plaintiff clearly has not met. Reno Air Racing Ass'n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). Rule 65(b) permits issuance of a TRO without "notice to the adverse party or its attorney, only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury...will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." 2
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injunction is in the public interest.'" Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter v. Natural Res. Def. , quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008). In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2). Underlying Allegations As the court has previously observed, in his underlying amended complaint, filed on October 22, 2009 (docket # 12), plaintiff alleges, inter alia, violations by defendants of his rights under the Eighth Amendment by failing to protect him from a sexual assault by a cellmate, on September 22, 2009, with whom he was placed by defendant Callison3 (whom plaintiff actually alleges set plaintiff up to be injured), and by showing indifference to his concerns thereafter. Amended Complaint, pp. 7-9. Plaintiff also makes claims of retaliation under the First Amendment: plaintiff alleges that after he had been raped, defendant Callison told him that the next time he got a cellmate, he (plaintiff) would not be walking out of his cell but would come out in a body bag for "snitching" against defendant Callison's partner (apparently, by having filed a grievance relating to defendant Hubbard's alleged harassment of plaintiff). Id., at 5-7. When, on September 25, 2009, plaintiff witnessed defendants Swart and Mortell "beat and punch another inmate in the face," plaintiff was threatened by them to keep silent or he might be hurt. Id., at 7-8. Plaintiff was so frightened that he informed a non-defendant social worker, Mr. Marrow, about what had happened and he called defendant Perez. Id., at 8. On September 30, 2009, defendant C/O Rainey wrote plaintiff up on a CDC-115 rules violation report (RVR) for obstructing a peace officer by refusing to accept assigned housing, stating that he did not care Plaintiff has introduced various spellings of this name; the court takes the spelling from defendant Callison's own declaration. See Callison Declaration, Docket # 20-3. 3
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about plaintiff's fears of being assigned an incompatible cellmate, even after plaintiff told him that he had been the victim of a sexual assault eight days earlier and that the cellmate officials planned to put in his cell was one with whom he had had a previous physical altercation. Id., at 8-9. Plaintiff told Rainey he had even gone on suicide watch because officers had not wanted to move either one of them. Id., at 9. Although defendant Perez had granted his 602, he made no attempt to protect plaintiff. Id. Plaintiff also alleges that defendants Cummings, Lockhart and Fannon, inter alia, failed to investigate his claims and to protect him. Id., at 16-17. Plaintiff seeks money damages. Id., at 11. Motion In his preliminary injunctive relief motion, plaintiff, who identifies himself as a mental health patient in fear for his life, states, under penalty of perjury, that defendants have tampered with his meals and deprived of him of access to showers and law library books; he states emphatically that defendant Callison set him up to be raped by his cellmate, on September 20, 2009, an allegation he makes in the underlying amended complaint4 and reiterates defendant Callison's alleged warning to him that he would come out of his cell next time in a body bag. Motion, p. 2. Plaintiff further states that on January 18, 2010, he and his cellmate, named Johnson (presumably a different cellmate from the one who allegedly raped plaintiff), had their lives seriously threatened. Id. Plaintiff states that "higher officials" have failed to take action to ameliorate the situation and that he is suffering retaliation due to his having filed a 602 grievance and a lawsuit against defendant Hubbard (by which it is unclear whether he means the instant lawsuit, wherein he sued many defendants, including Hubbard, or a different one). Id. Plaintiff claims that on January 18, 2010, two correctional officers (C/O's), defendant Callison as well as T. Smith, a non-party, both threatened the lives of plaintiff and his

There is, however, a discrepancy as to the date plaintiff identifies within his amended complaint, September 22, 2009, and the date he claims within his motion, September 20, 2009, as the day on which he was sexually assaulted. 4

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cellmate, Joseph Johnson, (apparently one with whom he has no problem being housed with) stating that they were going to be separated and killed or set up to be murdered. Motion, p. 3. Plaintiff avers that both defendant C/O Callison and non-defendant C/O Smith have assaulted him on "numerous occasions" and have tampered with his food. Id., at 3-4. Plaintiff is seeking an immediate transfer from HDSP and cautions that if he should wind up injured or dead, any such event will have been orchestrated by defendant Callison and non-party Smith and permitted by defendant McDonald and a non-defendant associate warden named Davey. Id., at 2, 4. Plaintiff makes his assertions under penalty of perjury. Id., at 4. On February 5, 2010 (docket # 18), plaintiff filed a document he entitled a declaration but which he failed to sign at all, much less under penalty of perjury. Within this defective document, plaintiff again asserts his desire to be transferred to a "safer facility," or alternatively to be put into federal protective custody. Docket # 18, p. 1. He continues to complain of HDSP ASU SNY inmates being forced to be housed with incompatible cellmates. Id., at 2. Plaintiff references again the alleged sexual assault to which he claims to have been subjected on September 20, 2009. Id., at 2-3. He refers, as well, to the alleged incident on January 18, 2010, this time adding that when C/O Smith and defendant Callison spoke to plaintiff's cellmate, Johnson, as he returned to the cell, non-party Smith is supposed to have said to Johnson: "Nigger, I will kill you! I will have you hanging in a cell in Z unit like that nigger they found on Christmas." Id., at 4. Plaintiff again reiterates that Smith and defendant Callison have threatened to kill him "on many occasions," and that he is in the mental health program and turning to the courts for help as he trusts no one where he is. Id. Response/Opposition The February 16, 2010 (docket # 20), response by the Office of the Attorney General points out that no defendants have yet been served and no waiver is intended by its special appearance. Response (Resp.), p. 1, note 1. The Attorney General's Office has determined that plaintiff had been housed in the HDSP Administrative Segregation Unit (ASU) 5

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originally on October 21, 2009, for being in possession of a weapon; plaintiff was found guilty on the RVR for a weapons violation on February 3, 2009, and assessed a 360-day credit loss and a ten-month Security Housing Unit (SHU) term. Resp., pp. 1-2, citing Declaration (Dec.) of R. Dreith, HDSP Litigation Coordinator ¶ 2. A Classification Services Representative (CSR) approved a ten-month SHU term for plaintiff on March 30, 2009, with a June 6, 2009, release date. Resp., p. 2, Drieth Dec., ¶ 3. Plaintiff was referred for non-adverse transfer to the Sensitive Needs Yard (SNY) of California State Prison-Lancaster (CSP-LAC), on September 10, 2009, due to safety concerns on the HDSP B SNY, but the CSR endorsement expired on February 3, 2010. Resp., p. 2, Dreith Dec., ¶ 4.5 When, on January 28, 2010, plaintiff was scheduled to appear at the Institutional Classification Committee (ICC) for a referral back to the CSR to endorse a transfer to either the CSP-LAC SNY or Pleasant Valley State Prison's (PVSP) SNY, plaintiff refused to attend the hearing, according to declarant R. Dreith, and the hearing was held with plaintiff in absentia. Dreith Dec., ¶ 5. The ICC recommended plaintiff's case be referred to the CSR with a recommendation for transfer to the SNY at PVSP or CSP-LAC. Id. According to Litigation Coordinator Dreith, although plaintiff is currently awaiting his transfer, he was moved from his housing in Unit D7 to Unit D6, in an abundance of caution on February 11, 2010, with the aim of ensuring the safety of both plaintiff and the staff he has accused of threatening him. Id., at ¶ 6. Finally, declarant Dreith avers that an investigation into plaintiff's allegations of rape by a former cellmate was conducted on September 20, 2009, by the HDSP Investigative Services Unit and has been completed. Id., at ¶ 7. Dreith states that the investigation showed plaintiff to be less than cooperative, failing to provide specific details of the incident; the investigating officer felt that plaintiff may have been attempting to manipulate staff with false Dreith refers to CSP-LAC as California State Prison, Los Angeles County, but the Attorney General apparently correctly refers to it as California State Prison-Lancaster. 6
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sexual assault allegations to obtain a cell move or a transfer from HDSP. Id. In a separate declaration, defendant C/O E. Callison denies that he assaulted plaintiff or set him up to be raped or that he has ever threatened or assaulted any inmate. Callison Dec., ¶¶ 2-3. He further declares that, while he has the authority to initiate bed or cell moves, that all potential cellmates are screened for compatibility by an officer, sergeant or lieutenant and prospective cellmates must sign a chrono indicating they can be suitably housed together. Id., at ¶ 4. Further, all moves must be approved and authorized by the unit sergeant or lieutenant, according to declarant Callison. Id. Plaintiff's Further Filing In motion for an extension of time, filed on February 18, 2010 (docket # 21), which the court will address hereafter, plaintiff attaches a 602 grievance he and his cellmate, Johnson, evidently filed on February 15, 2010. The grievance confirms by plaintiff his move from D-7 to D-6 that the Attorney General's response indicated had occurred on February 11, 2010. In the grievance, plaintiff apparently means to assert that his troubles have not been resolved by the move. He claims that defendant Swart, on the same day as the move, February 11, 2010, left D-7 to come to D-6, whereupon he destroyed legal documents intended for court belonging to Johnson6 and himself, as well as Johnson's personal property, in retaliation for the instant lawsuit, the pending motion, and/or other legal matters. Defendant Swart stated: "this is not over, it's just the beginning...," according to plaintiff's grievance. The next day, February 12, 2010, defendant Swart again came from D-7 to D-6, at the time of breakfast tray pick up and asked plaintiff and Johnson if they liked the "special trays" he had made for them. Half an hour later defendant Swart and a non-defendant C/O named Marshall came and told plaintiff and Johnson to put on handcuffs for a cell search. They refused because they did not want the rest of

Plaintiff makes frequent reference in his administrative grievance to an inmate named Johnson, evidently his current cellmate, as another plaintiff or as a co-plaintiff in this action, but there is no basis for this. This matter is proceeding with Daniel Bjorlin as the sole plaintiff. 7

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their property to be destroyed by defendant Swart. When a non-party Correctional Sgt. Lowther came to ask them to cuff up for a property search, they explained what had happened the day before; Lowther told defendant Swart to leave D-6, after which Johnson and plaintiff complied with the cell search (which apparently proceeded without further incident). Plaintiff in his grievance claims that his "psych doctor" Sloan said he was aware of the threats and harassment plaintiff has been experiencing. Conclusion While plaintiff does appear to be seeking preliminary injunctive relief in his motion for an injury or potential injury that bears the necessary relationship to the conduct asserted in the underlying amended complaint, Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994), per curiam,7 plaintiff is hampered in proceeding on his motion by failing to make clear that he seeks injunctive relief within the instant complaint. Moreover, based on both the response by the Attorney General's Office and on plaintiff's own representation, it appears that plaintiff has been moved from the immediate sphere of defendant Callison of whom he complains most vociferously within his motion. Further, it appears that plaintiff is to be transferred to another facility in the near future. While it is difficult to assess at this stage plaintiff's likelihood of success on the merits, the court finds in the most current circumstances that he has not made an adequate showing that he is likely to suffer irreparable harm in the absence of preliminary injunctive relief, even were he to amend the relief he seeks to include injunctive relief in the underlying action. Nor does the court find that in light of his recent move and apparently imminent transfer that the balance of equities tips in his favor, and that an injunction would be in the public interest. The motion should be denied. Motion for Extension of Time Plaintiff has also asked for an extension of time to submit the ten amended Cited in Anaya v. Campbell, 2009 WL 425034 *1 (E.D. Cal 2009); Houser v. Grant-Ellis, 2010 WL 432327 *1 (D. Ariz. Feb. 2, 2010). 8
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complaint copies, pursuant to the Order, filed on February 4, 2010 (docket # 14), as well as six additional USM-285 forms. Motion, filed on February 18, 2010 (docket # 21). Plaintiff contends that, as a form of retaliation by defendant Swart and unnamed others, he is being restricted to making two copies of the amended complaint a week. Id., at 2. He also states that defendant Swart destroyed legal forms and documents related to the instant case. Id. The court has previously referenced the contents of the 602 inmate appeal form that he filed on February 15, 2010, claiming that defendant Swart destroyed his legal work and personal property (as well as that of another inmate named Johnson) in anger because of plaintiff's having sought a "restraining order" in this case. Id., at 3. The court will grant plaintiff's requests for an extension of time and additional forms on this occasion. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's request for an extension of time to return the forms and copies of the amended complaint necessary for the court to direct service of process and his request for six additional USM-285 forms, filed on February 18, 2010 (docket # 21), are both granted; 2. Plaintiff is granted until March 31, 2010, to return the requisite copies and forms as set forth in the court's order of February 4, 2010 (docket # 14); and 3. The Clerk of the Court is directed to provide plaintiff with six additional USM285 forms. 4. In addition, the Clerk of the Court must serve a copy of this Order and these Findings and Recommendations upon Supervising Deputy Attorney General Monica Anderson. IT IS RECOMMENDED that plaintiff's motion for preliminary injunctive relief, filed on January 27, 2010 (docket # 13), be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned 9

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"Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: February 26, 2010 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
GGH:009 bjor1793.ofr

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