Jones v. Toft et al

Filing 146

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/14/2013 DENYING plaintiff's 140 request to disqualify the court-appointed neutral expert; and defendants may renew their motions for summary judgment within 30 days; and RECOMMENDING that plaintiff's 135 , 139 motions for injuctive relief be denied. Referred to Judge Morrison C. England, Jr.; Objections due within 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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ANTHONY JONES,
Plaintiff,

ORDER AND
FINDINGS AND RECOMMENDATIONS

vs.

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No. 2:11-cv-0192 MCE EFB P

Defendants.

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TOFT, et al.,

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/
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently pending before the court are plaintiff’s motion for injunction and

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objection to the court-appointed neutral expert, Dr. Willard Fee. Dckt. Nos. 135, 139, 140. The

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court has also received Dr. Fee’s report. Dckt. No. 142.

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I.

Motion for Injunction
Plaintiff objects to being brought to court to be examined by the court-appointed neutral

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expert. He objects that he has been placed in administrative segregation at California State

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Prison, Sacramento (“CSP-Sac”) while in town for the examination, and asks the court order that

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he be permanently housed at CSP-Sac so that he can be taken from administrative segregation

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and housed in the general population. Plaintiff is currently housed at Kern Valley State Prison.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts 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, 129 S. Ct. 365, 172

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L. Ed. 2d 249 (2008)). The Ninth Circuit has also held that the “sliding scale” approach it

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applies to preliminary injunctions—that is, balancing the elements of the preliminary injunction

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test, so that a stronger showing of one element may offset a weaker showing of

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another—survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622

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F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions going to the merits,’ and a

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hardship balance that tips sharply toward the plaintiff can support issuance of an injunction,

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assuming the other two elements of the Winter test are also met.” Id. In cases brought by

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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly

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drawn, extend no further than necessary to correct the harm the court finds requires preliminary

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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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Here, the injunction must be denied for the simple fact that it challenges conduct that is

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not a subject of this action and took place long after this action was filed. Plaintiff’s motion for

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preliminary injunction does not show serious questions going to the merits of this action because

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it relates solely to entirely different events. Staff responsible for plaintiff’s housing location are

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not parties to the instant action, which was initiated prior to plaintiff’s temporary transfer to

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CSP-Sac. The court has no authority to order prison officials at Kern Valley to transfer plaintiff
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to a different prison as there are no defendants at Kern Valley in this action. Zenith Radio Corp.

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v. Hazeltine Research, Inc., 395 U.S. 100 (1969) (stating that the court cannot issue an order

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against individuals who are not parties to a suit pending before it). If plaintiff believes that his

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housing situation violates federal law, these allegations are properly the subject of another

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lawsuit and cannot be cannot be adjudicated in this action, where they cannot be properly

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exhausted through the administrative appeals process and where the parties whom plaintiff seeks

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to enjoin are not before the court. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir.

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2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together

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holding that claims must be exhausted prior to the filing of the original or supplemental

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complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at

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*11-15 (E.D. Cal. Feb. 11, 2011). Accordingly, plaintiff’s motions for preliminary injunctive

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relief must be denied.

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II.

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Objection to Expert
Plaintiff argues that Dr. Fee cannot perform his duties as neutral expert impartially

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because he taught at Stanford University during defendant Toft’s training there and also has in

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the past worked for the law firm representing defendant Toft. Dr. Fee has informed the court

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that he has no current relationship with defendant Toft and that he has worked on one or two

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cases for the law firm of Schuering Zimmerman & Doyle LLP in the past but has not worked for

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the particular attorneys at that firm who represent defendant Toft. Dr. Fee does not believe that

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these facts have caused him to skew his opinion in favor of any defendant.

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The court has the inherent power to disqualify an expert witness, although cases granting

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disqualification are rare. Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (9th

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Cir. 1996); Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980). In cases where an

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expert has had a prior relationship with an adversary, the party seeking disqualification bears the

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burden of showing that (1) the adversary had a confidential relationship with the expert and (2)

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the adversary disclosed confidential information to the expert that is relevant to the current
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litigation. Koch Ref. Co., 85 F.3d at 1181; Ziptronix Inc. v. Omnivision Techs., Inc., No. C-10-

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05525 SBA (EDL), 2013 U.S. Dist. LEXIS 5422, at *3-4 (N.D. Cal. Jan. 14, 2013).

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Plaintiff’s objection to Dr. Fee’s appointment fails to establish that Dr. Fee had a

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confidential relationship with either defendant or, more importantly, that Dr. Fee’s prior contacts

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with defendant Toft and Schuering Zimmerman & Doyle LLP resulted in the disclosure of

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information relevant to the instant case. Other than plaintiff’s vague speculation, there is simply

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no basis on which the court can conclude that Dr. Fee’s limited prior contacts with defendant

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Toft and Scheuring Zimmerman & Doyle LLP have rendered him unable to offer an impartial

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opinion in this case. Accordingly, plaintiff’s request that Dr. Fee be disqualified and a new

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expert appointed will be denied.

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III.

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Expert Report
The court has received Dr. Fee’s expert report. Dckt. No. 142. Accordingly, per the

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court’s order of November 27, 2012, defendants may renew their motions for summary judgment

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within 30 days of the date of this order. Dckt. No. 105. Plaintiff shall file any opposition to the

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motions within 21 days of the date of service of the motions. E.D. Cal. L.R. 230(l). Defendants’

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reply briefs, if any, shall be filed within 7 days of the date of service of plaintiff’s opposition

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briefs. Id.

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IV.

Order

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s request to disqualify the court-appointed neutral expert (Dckt. No. 140) is

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denied; and

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2. Defendants may renew their motions for summary judgment within 30 days of the

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date of this order.

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Further, it is RECOMMENDED that plaintiff’s motions for injunctive relief (Dckt. Nos.
135 and 139) 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: May 14, 2013.

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