Birdwell et al v Cates et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/2/2011 RECOMMENDING that pltf's 38 motion for preliminary injunction be denied. Referred to Judge Kimberly J. Mueller; Objections due w/in 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BILLY PAUL BIRDWELL, II,
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Plaintiff,
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vs.
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No. CIV S-10-0719 KJM GGH P
M. CATES, et al.,
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Defendants.
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FINDINGS & RECOMMENDATIONS
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Plaintiff is a prisoner proceeding pro se and in forma pauperis with a civil rights
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action pursuant to 42 U.S.C. § 1983. This action arises out of allegations that plaintiff’s ability
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to practice his religion was violated under the First Amendment and RLUIPA.
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On April 11, 2011, plaintiff filed a motion for a preliminary injunction alleging
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that he was transferred from Mule Creek State Prison (MCSP) to another institution in retaliation
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for the instant litigation.1 Plaintiff contends that defendants took this action as many of the
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claims in the instant federal civil rights action would become moot as a result of this transfer.
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Defendants were ordered to file a reply to plaintiff’s motion and defendants complied.
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Plaintiff also filed a civil rights action in this court on March 11, 2011, containing the
same allegations as the instant motion for a preliminary injunction. See S-11-0685 JAM EFB
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Preliminary Injunction/Temporary Restraining Order
“The proper legal standard for preliminary injunctive relief requires a party to
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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
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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), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (2008).
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The “serious questions” on the merits test survives, but requires an even clearer showing of
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irreparable harm and hardship if a preliminary injunction were not to be granted. Alliance for
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the Wild Rockies, 632 F.3de 1127, 1131-32 (9th Cir. 2011).
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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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Plaintiff filed the instant complaint on March 25, 2010. Plaintiff was transferred
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from MCSP to another prison on January 18, 2011. The court ordered service on defendants on
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February 9, 2011. Plaintiff alleges that this transfer was retaliatory and many of his claims will
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become moot as a result of the transfer. Plaintiff is classified as a Level III inmate in the
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Sensitive Needs Yard (SNY). Plaintiff alleges that MCSP was still accepting new Level III
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inmates when he was transferred. Defendants state that plaintiff was transferred based on the
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loss of many Level III beds in MCSP as part of routine changes set forth by CDCR.
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Defendants state that CDCR prepares an Institution Activation Schedule (IAS)
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each fiscal year which is revised every two months to reflect changes in the number of inmates
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requiring particular types of housing. Beds are activated (opened) or deactivated (closed) based
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on changes in those numbers. An IAS that was issued in May 2010, was revised on September
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30, 2010, and ordered that MCSP was to close 108 Level III beds in the B Dayroom beginning in
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October 2010, and an additional 108 Level III beds were to be closed in the C Dayroom
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beginning November, 2010. Opposition, Exh. C, Decl. of Fletes at ¶ 5; Exh. C, Attachment 1
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Table.
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As a result of the loss of so many beds, staff at MCSP needed to identify inmates
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who could be moved to other institutions that housed Level III SNY inmates, and those inmates
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who could not be moved. On October 10, 2010, a unit classification committee (UCC) hearing
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was held to review plaintiff’s status. Two of the members of the UCC committee are defendants
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in this action. The committee found that plaintiff could be transferred without any adverse
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effects and it would not change his custody level or work/privilege group status. Plaintiff
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objected and alleged he was being transferred in retaliation for his lawsuit. The committee noted
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the objections but recommended the transfer anyway.
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Defendants also state that the transfer was ordered in 2010, but the court did not
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order the complaint to be served until February 2011, and the defendants did not receive notice
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until after that. Defendants argue that they could not retaliate against plaintiff for litigation as
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they were not aware of the litigation and who was named as individual defendants. While
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defendants raise a valid point, it is at least possible that they could have been aware that plaintiff
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had filed grievances or named them as defendants in the instant complaint.
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Yet, regardless of what defendants were aware of in terms of a filed litigation,
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plaintiff has failed to meet his burden for a preliminary injunction. Plaintiff has failed to
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demonstrate even serious questions that his transfer was in retaliation for this litigation.
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Certainly, plaintiff has produced no evidence, but the transfer itself after litigation was filed (but
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without service on defendants), that the motivation for the transfer involved retaliation.2 Nor
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does plaintiff support his assertion that defendants were aware of the legal status (potential
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The complaint and motion for a preliminary injunction only contain general allegations
that plaintiff was warned he would be transferred if he continued his litigation. Plaintiff never
identifies a specific defendant who made this statement and there are nearly 20 defendants in this
case. Even if one of the defendants made this statement there were only a few defendants
responsible for the transfer. These general allegations are insufficient.
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mootness) for injunctive relief claims upon transfer.
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More importantly, it is undisputed that MCSP had to close 216 beds for inmates
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with the same status as plaintiff, and defendants succeeded in keeping plaintiff’s status and
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classification the same at the new facility. Had no beds been closed and plaintiff was forced to
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transfer by himself, then it is possible that plaintiff would have a possibly meritorious claim.
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However, the reality is that staff were confronted with having to close a large number of beds,
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transfer inmates and attempt to keep all inmates in the same status and custody level. That
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plaintiff had pending litigation and was transferred is insufficient to show retaliation in this
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context. It is possible that other inmates had filed law suits and were transferred, but that does
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not prove that all of those inmates were also the victims of retaliation. Plaintiff has failed to
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show that he will probably succeed on the merits for this claim, or even serious questions going
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to the merits, or that he will suffer irreparable harm. In fact, defendants have set forth facts that
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show plaintiff has the ability to practice his religion at the new facility. For all these reasons
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plaintiff’s motion for a preliminary injunction should be denied.
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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a
preliminary injunction (Doc. 38) 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 reply to the objections
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shall be served and filed within seven days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 2, 2011
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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