Craver v. Hasty et al

Filing 114

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/10/14 ORDERING that the Clerk of the Court shall serve a copy of these findings and recommendations on the Warden of California State Prison- Lancaster, P.O. B ox 4430, Lancaster, California, 93539; and on Deputy Attorney General Aldo S. Zilli; and it is RECOMMENDED that plaintiffs motion for federal protection (ECF No. 108 ), construed as a motion for injunctive relief, be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE CRAVER,

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Plaintiff,

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v.

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No. 2: 11-cv-1344 TLN KJN P
ORDER AND

J. HASTY, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Introduction
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is set for jury trial before the Honorable Troy L. Nunley on

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September 28, 2015. Pending before the court is plaintiff’s June 18, 2014 motion for federal

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protection. (ECF No. 108.) For the following reasons, the undersigned recommends that this

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motion be denied.

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Plaintiff’s Motion

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Plaintiff, who is currently housed at California State Prison-Lancaster (“Lancaster”),

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alleges that on June 9, 2014, Correctional Officer Polwart placed a “hit” on plaintiff by telling the

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inmate general population that plaintiff is a snitch. Plaintiff alleges that Correctional Officer

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Polwart paid six inmates, with chewing tobacco and cell phones, to stab and beat plaintiff. In his

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motion, plaintiff identifies four of these inmates by name and number. Plaintiff alleges that the
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“hit” was taken in retaliation for plaintiff’s pursuit of the instant action.
Plaintiff alleges that he is currently housed in the prison medical hospital on suicide

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watch. Plaintiff alleges that he was placed on suicide watch as an emergency method to remove

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him from the general public.

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The undersigned construes plaintiff’s pending motion as a motion for injunctive relief.
Legal Standards

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No defendants are located at Lancaster. Usually persons or entities not parties to an action

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are not subject to orders for injunctive relief. Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100 (1969). However, the fact that one is not a party does not automatically preclude the

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court from acting. The All Writs Act, 28 U.S.C. § 1651(a), permits the court to issue writs

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“necessary or appropriate in aid of their jurisdiction and agreeable to the usages and principles of

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law.” See generally S.E.C. v. G.C. George Securities, Inc., 637 F.2d 685 (9th Cir. 1981); United

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States v. New York Telephone, 434 U.S. 159 (1977). This section does not grant the court

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plenary power to act in any way it wishes; rather, the All Writs Act is meant to aid the court in the

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exercise and preservation of its jurisdiction. Plum Creek Lumber Company v. Hutton, 608 F.2d

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1283, 1289 (9th Cir. 1979.)

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Discussion

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On June 25, 2015, the undersigned directed the Warden of Lancaster to file a status report

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addressing plaintiff’s claims in his pending motion. (ECF No. 109.) On July 2, 2014, the

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Warden filed a status report. (ECF No. 113.)

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The Warden has provided the declaration of Officer Polwart who states that he was not

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working on June 9, 2014, i.e., the date plaintiff alleges he placed the “hit.” (ECF No. 113-2 at 2.)

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Officer Polwart states that he is currently assigned to Building 3 of Delta Yard. (Id.) Plaintiff is

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not housed in Building 3, and was not housed in Building 3 at the time of the allegations. (Id.)

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Officer Polwart states that plaintiff has never approached him on the yard. (Id.)

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Officer Polwart further states that he cannot recall his last interaction with plaintiff. (Id.)

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Officer Polwart may have interacted with plaintiff when he was housed in Building 5 sometime in

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2013 when Officer Polwart was assigned as a Control Booth Officer there until January 2014.
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(Id.) Officer Polwart states that he did not place a hit on plaintiff or inform other inmates that

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plaintiff is a snitch. (Id. at 1.)

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The Warden has also filed the declaration of Dr. Jordan, a clinical psychologist at

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Lancaster. (ECF No. 113-1.) Dr. Jordan states that on June 11, 2014, plaintiff told her that a

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correctional officer had placed a hit on him and told other inmates that he was a snitch. (Id. at 2.)

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However, Dr. Jordan was not able to obtain any information to substantiate these allegations, as

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they were based solely on plaintiff’s own statements. (Id.) Dr. Jordan states that during this

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clinical contact, plaintiff was non-responsive, disrespectful and hostile. (Id.) Dr. Jordan made

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several attempts to calm plaintiff down and de-escalate the situation so that plaintiff could further

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discuss his allegations and so that she could help him to develop a plan to address them. (Id.)

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Plaintiff did not change his demeanor and eventually refused to speak altogether. (Id.)

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Dr. Jordan states that on June 11, 2014, plaintiff made specific threats to seriously harm

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correctional staff. (Id.) The threats were serious and specific enough to trigger Dr. Jordan’s duty

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to warn and, on June 11, 2014, Dr. Jordan prepared a Duty to Protect Confidential Chrono

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advising of plaintiff’s threats of harm. (Id.) Based on Dr. Jordan’s interactions with plaintiff on

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June 11, 2014, Dr. Jordan concluded that plaintiff did not appear to be in any imminent danger

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from correctional staff. (Id.) To the contrary, plaintiff’s serious and specific threats created a

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potential danger to staff. (Id.)

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The Warden also filed a declaration by N. Wilcox, a Litigation Coordinator at Lancaster.

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(ECF No. 113-3.) N. Wilcox states that on June 11, 2013, plaintiff was issued a Rules Violation

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Report based on his threatening staff and specifically threatening to stab Correctional Officer

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Geiwitz. (Id. at 1-2.) On June 11, 2013, plaintiff was placed in Administrative Segregation, but

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was subsequently placed in a Mental Health Crisis Bed until June 20, 2014. (Id. at 2.) On June

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20, 2014, plaintiff was returned to Administrative Segregation. (Id.) Plaintiff was transferred to

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Administrative Segregation due to his threats against staff and the resulting Rules Violation

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Report. (Id.)

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Discussion
After reviewing the Warden’s status report, and attached documents, the undersigned

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finds that injunctive relief pursuant to the All Writs Act is not warranted. The declarations

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attached to the Warden’s status report do not support plaintiff’s claim that Officer Polwart placed

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a “hit” on him. The documents attached to the Warden’s status report indicate that plaintiff is not

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in danger. For these reasons, the undersigned recommends that plaintiff’s June 18, 2014 motion

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for federal protection, construed as a motion for injunctive relief, be denied.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall serve a copy of
these findings and recommendations on the Warden of California State Prison-Lancaster, P.O.
Box 4430, Lancaster, California, 93539; and on Deputy Attorney General Aldo S. Zilli; and
IT IS HEREBY RECOMMENDED that plaintiff’s motion for federal protection (ECF
No. 108), construed as a motion for injunctive relief, 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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 10, 2014

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Cr1344.inj

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