Lopez v. Davey, et al

Filing 38

ORDER denying 31 Motion for transfer signed by Magistrate Judge Carolyn K. Delaney on 10/14/11. (Plummer, 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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RAFAEL LOPEZ,

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Plaintiff,

No. CIV S-09-3089 MCE CKD

vs.
DAVE DAVEY, et al.,

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Defendants.

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ORDER
/

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil

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rights action to 42 U.S.C. § 1983 in 2009. The complaint alleges that defendants violated

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plaintiff’s Eighth Amendment rights by confining him to a holding cell without restroom breaks,

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drinking water, or food for approximately 24 hours in December 2008. (Dkt. No. 1 at 4, 7.)

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Pending before the court is defendants’ motion for summary judgment, so far unopposed. (Dkt.

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No. 36, 37.) Prior to ruling on that motion, the court will address plaintiff’s June 20, 2011

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motion for transfer, in which plaintiff seeks a transfer to a different prison because defendants

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Davey and Robertson are allegedly endangering plaintiff’s life in retaliation for filing this action.

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(Dkt. No. 31.)

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Plaintiff asserts that, on June 16, 2011, he went before the Institutional

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Classification Committee (ICC) in the Administrative Segregation Unit (ASU) in Facility D at

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High Desert State Prison. He alleges that defendant Davey was a member of the ICC and
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threatened, in retaliation for this lawsuit, to house plaintiff with gang member inmates who

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would beat him. Plaintiff further alleges that he has been beaten by three inmates on the order of

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defendants Davey and Robertson and fears for his life at High Desert State Prison. (Dkt. No. 31

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at 1-2.)

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On June 22, 2011, the magistrate judge previously assigned to this case ordered

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defendants to respond to the motion for transfer. Defendants filed an opposition to the motion on

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June 29, 2011. (Dkt. No. 33.) Defendants assert that defendant Davey is a regular member of

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the ICC, but was not personally involved in the decision to place plaintiff in the ASU on June 6,

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2011. In a signed declaration, defendant Davey denies discussing this lawsuit at the June 16,

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ICC hearing, making threats to Lopez regarding his safety, or knowing of any other staff member

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threatening Lopez’s safety. (Dkt. No. 34 at 2-3.) Defendants assert that plaintiff was placed in

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ASU on June 6, 2011 for assaulting another inmate, and had previously been charged with

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battering an inmate in May 2011. (Dkt. No. 33 at 2.) Neither of these inmates were in the ASU

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with plaintiff in June 2011, and “HDSP custody staff, including Davey, have taken appropriate

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steps to ensure that he is not housed with these inmates who may threaten him.” (Id. at 3, 5.)

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In sum, defendants claim there is no reason to believe that plaintiff is in any danger or requires a

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transfer for his safety. (Id. at 3.) They further assert that plaintiff has not shown a likelihood of

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success on the merits as required for preliminary injunctive relief. (Id. at 6.)

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Plaintiff’s motion for a court-ordered transfer is a request for injunctive relief.

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The legal principles applicable to a request for injunctive relief are well established. To prevail,

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the moving party must show either a likelihood of success on the merits and the possibility of

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irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in

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the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir.

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1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The

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two formulations represent two points on a sliding scale with the focal point being the degree of

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irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under any formulation of the
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test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.” Id. In

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the absence of a significant showing of possible irreparable harm, the court need not reach the

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issue of likelihood of success on the merits. Id.

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Here, the court concludes that plaintiff has not shown a significant threat of

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irreparable injury due to defendants’ retaliation for filing this action. Rather, it appears that his

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physical altercations with other inmates in May and June 2011 were not related to this lawsuit or

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instigated by defendants. The court takes at face value defendant Davey’s sworn declaration that

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he never threatened plaintiff and is unaware of any other staff member threatening plaintiff in

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retaliation for this action. Similarly, the court accepts defendants’ assertions that plaintiff was

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placed in ASU, apart from those inmates with whom he had fought, for his own safety, among

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other reasons.

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Moreover, plaintiff has not shown a likelihood of success on the merits of his

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retaliation claim, which is not the subject of this lawsuit and supported only by plaintiff’s

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conclusory allegations in his motion for transfer. Should plaintiff wish to pursue a First

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Amendment retaliation claim in a separate action under section 1983, he is advised that he must

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first exhaust administrative remedies pursuant to 42 U.S.C. § 1997(a). See Porter v. Nussle, 534

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U.S. 516, 532 (2002) (the exhaustion requirement “applies to all inmate suits about prison life,

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whether they involve general circumstances or particular episodes, and whether they allege

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excessive force or some other wrong.”) If administrative remedies have not been exhausted for a

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claim challenging prison conditions pursuant to section 1983, “the proper remedy is dismissal of

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the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s June 20,
2011 motion for transfer (Dkt. No. 31) is denied.
Dated: October 14, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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