Whitaker v. Jaffe et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that 50 , 54 MOTIONS for PRELIMINARY INJUNCTION be denied signed by Magistrate Judge Edmund F. Brennan on 7/28/11: 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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JOSEPH WHITAKER,
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Plaintiff,
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No. CIV S-10-1400 KJM EFB P
vs.
CHEN, et al.,
Defendants.
FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner without counsel in an action brought under 42 U.S.C. § 1983.
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Plaintiff has filed motions for injunctive relief. Dckt. Nos. 50, 54. Plaintiff alleges that he is
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being subjected to a variety of harassment and inhumane treatment by CDCR staff. Id. The
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court ordered defendants to respond to plaintiff’s motions. Dckt. No. 57. Defendants have
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complied with the order. Dckt. Nos. 60, 61.
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To be entitled to preliminary injunctive relief, a party must demonstrate “that he is likely
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to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
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relief, that the balance of equities tips in his favor, and that an injunction is in the public
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interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v.
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Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has also held that the
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“sliding scale” approach it applies to preliminary injunctions as it relates to the showing a
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plaintiff must make regarding his chances of success on the merits survives Winter and continues
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to be valid. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“‘serious
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questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff
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can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a
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likelihood of irreparable injury and that the injunction is in the public interest.”). 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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Plaintiff alleges that since he filed this lawsuit, he has suffered retaliation at the hands of
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CDCR staff, including harassment and inhumane treatment. Dckt. No. 50, 54. His first filing
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alleges that the ICC is making false charges to keep him in administrative segregation. Dckt.
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No. 50 at 3. He states that staff refuses to respond to his internal appeals and that CDCR is not
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following the “Coleman program guide.” Id. at 5.
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He further alleges that his legal mail and a book, Prisoners’ Self-Help Litigation Manual,
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which was sent by the law firm of Rosen, Bien and Galvan, have been intercepted; that he has
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been denied access to the law library; that he has had to wait 2-3 weeks to get clean clothes or go
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to the yard, and that his mattress had bugs on it; that he has been put in the SHU on false
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charges, and made to serve two SHU terms for the same 115 violation; and that he has not been
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given writing supplies. Dckt. No. 50. He asks that the court order CDCR staff to stop harassing
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him, stop intercepting his legal mail and law books, stop denying him clean clothes, and have
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him removed from the SHU and transferred to Atascadero State Hospital. Id. He further states
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that he was recently denied parole for ten years and that he has mental health problems,
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including homicidal tendencies and psychosis, and physical health problems, including a heart
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murmur, chronic constipation, left-eye blindness, diabetes, and neuropathy of the hands and feet.
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Id.
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Defendants have responded to many of plaintiff’s complaints, and have submitted
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declarations and records in support of their opposition. Dckt. Nos. 60, 61. First, defendants
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argue that the court lacks jurisdiction to enjoin the warden of SAC, as he is not a party to this
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action. Dckt. No. 2-3. But Fed. R. Civ. P. 65(d) provides that an injunction binds the parties;
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the parties’ officers, agents, servants, employees, and attorneys; and other persons who are in
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active concert or participation with these people. However, because plaintiff’s motion for
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preliminary injunction fails on the merits, the court need not decide whether the warden falls into
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one of these categories.
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Regarding plaintiff’s allegations that he has been denied law library access, defendants
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submit a declaration from J. Bradford, a CDCR law librarian, who attests that plaintiff has been
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granted law library access, but was denied Priority Library User status because he did not
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include a court deadline in his request. Dckt. No. 60-1. Defendants submit documents showing
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that plaintiff had law library access in December 2010, and that he requested PLU status in
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March 2011, but that he was denied because he did not claim to have a court-ordered deadline.
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Id., Ex. 1, 2.
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Regarding plaintiff’s allegations that his mental health needs are not being met,
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defendants submit the declaration of R. Carter, a supervisor in the Psychiatric Services Unit at
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SAC. Dckt. No. 60-2 at 1. Carter declares that plaintiff has been housed in the PSU in the
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Medical Outpatient Housing Unit and the Mental Health Crisis Bed Unit since March 2011. He
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was in the MHCB unit between June 21 and July 5, 2011. Id. at 2. On July 5, 2011, he was
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transferred to the PSU. Id. He was provided clothing on June 21 and June 28, 2011. Id. at 2, 4,
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5 (exhibit showing that clothing was provided on those dates). In addition, M. Di Ciro,
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Supervising Senior Psychologist at SAC, who is the clinical director of the MHCB unit, declares
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that plaintiff was determined to be a danger to himself due to his deteriorating mental health in
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June 2011, and was referred to the MHCB unit. Dckt. No. 60-3 at 2-3. There is an exercise yard
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in the unit, and plaintiff accessed it on June 29, 2011. He was unable to access the yard from
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June 30 until July 5, because Coleman class members are not allowed to access the yard during
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extreme heat. Id. at 3.
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Defendants have also submitted the declaration of L. Johnson, the mailroom supervisor at
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SAC. Dckt. No. 60-4 at 1-2. He declares that plaintiff has been provided his legal mail “since at
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least June 7, 2011.” Id. at 2. Plaintiff has received mail from Michael Bien of the law firm
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Rosen, Bien and Galvan, attorney Barbara Michel, and the Department of Justice. Id. In
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addition, defendants have submitted a medical record stating that plaintiff had a copy of the book
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he specifically mentioned during a clinician’s visit. Dckt. No. 61-2 at 24.
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Plaintiff has not met his burden of showing that a preliminary injunction is warranted.
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Notably, he has not demonstrated that irreparable harm will result if his motion is denied, or that
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he is likely to succeed on the merits of any of his complaints. Although he states that he has
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been harassed since he filed this lawsuit, he has not claimed that any specific harassment is
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ongoing. Although he claims that he was falsely placed in administrative segregation,
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defendants have presented evidence that plaintiff is no longer in administrative segregation.
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Plaintiff claims that defendants are not complying with Coleman, but does not explain
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specifically how they are failing to do so. Although plaintiff claims that his legal mail is not
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being delivered, defendants have presented evidence that it has been delivered, and that plaintiff
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has received the book that was sent to him. Plaintiff claims that he has had to wait 2-3 weeks to
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get clean clothes or go to the yard, but defendants’ exhibits show that he was provided clothes
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weekly and went to the yard one time before the heat made the yard unsafe for Coleman class
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members. The remainder of plaintiff’s complaints do not allege that he will suffer harm at the
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hands of CDCR staff, but are general complaints regarding his mental and physical health.
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Accordingly, plaintiff has not demonstrated that he is likely to succeed on the merits of
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his claims. Nor the court is not convinced that irreparable harm will result if his motion is
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denied or that the balance of equities tips in his favor. Neither has plaintiff made a showing that
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the injunction he seeks is in the public interest. Plaintiff’s motion for injunctive relief should
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therefore be denied.
Accordingly, it is hereby RECOMMENDED that plaintiff’s motions for injunctive relief,
Dckt. Nos. 50, 54, 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: July 28, 2011.
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