Craver v. Hasty et al

Filing 138

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/17/15 ORDERING that the Clerk shall serve a copy of this order on Deputy Attorney General Andrea Sloan; and it is RECOMMENDED that plaintiffs motion for federal protection (ECF No. 131 ) be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANDRE CRAVER,

12

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

Plaintiff,

13

v.

14

J. HASTY, et al.,

15

FINDINGS AND RECOMMENDATIONS

Defendants.

16
17

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

18

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

19

September 28, 2015. This action is proceeding to trial on plaintiff’s claim that on February 2,

20

2011, while housed at High Desert State Prison (“HDSP”), defendants Raynor and Hasty used

21

excessive force in violation of the Eighth Amendment when they sprayed O.C. spray into

22

plaintiff’s cell during a cell search.

23
24

Pending before the court is plaintiff’s May 11, 2015 motion for federal protection. (ECF
No. 131.) For the following reasons, the undersigned recommends that this motion be denied.

25

Plaintiff’s Pending Motion

26

On May 11, 2015, plaintiff filed the pending motion. At that time, plaintiff was housed at

27

California State Prison-Lancaster (“Lancaster”). In this motion, plaintiff alleged that correctional

28

officers at Lancaster told him that he was to be transferred to Pelican Bay State Prison (“PBSP”).
1

1

The officers allegedly told plaintiff that the “move came from Sacramento, you pissed somebody

2

off.” Plaintiff claimed that he told the officers that he had a jury trial in Sacramento in

3

September. In response, the officers allegedly said, “There it is...watch your back Craver, they’re

4

waiting for you.”

5

On May 27, 2015, plaintiff filed a notice of change of address and status report. (ECF No.

6

133.) In this pleading, plaintiff stated that he was now housed at PBSP. Plaintiff also stated that

7

he was sent to PBSP in order to receive the E.O.P mental health level of care. Plaintiff alleged

8

that he was discharged from a PBSP crisis bed on May 18, 2015, and immediately informed

9

prison officials that his life was in danger. After his release from the crisis bed, plaintiff alleged

10

that he was reclassified to the CCCMS level of care, which allowed custody staff to place plaintiff

11

on the “A” yard, which is known as the “war zone.” Plaintiff alleged that the psychologist

12

changed his mental health status without examining him.

13

In the May 27, 2015 pleading, plaintiff goes on to state that he is in fear of an ambush.

14

Plaintiff alleges that because he is back in the general population, “they” can persuade the active

15

gangbang inmates to attack him. Plaintiff alleges that he is now under severe stress. Plaintiff

16

states that he will not let these people kill him. Plaintiff states that he will kill himself before

17

“these people” kill him. Plaintiff states that he will hang himself rather than be housed at PBSP

18

waiting to be attacked.

19

Legal Standard

20

No defendants are located at PBSP. Usually persons or entities not a party to an action are

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

1283, 1289 (9th Cir. 1979.)

2

Discussion

3

On May 29, 2015, the undersigned directed the PBSP Warden to file a status report

4

addressing plaintiff’s mental health classification, whether plaintiff was appropriately housed in

5

the general population and plaintiff’s safety concerns. (ECF No. 134.)

6

On June 5, 2015, the Warden filed a status report. (ECF No. 136.) Attached to the status

7

report is the declaration of Dr. Limon, Senior Psychologist at PBSP. (ECF No. 136-1.) Dr.

8

Limon states, in relevant part,

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2. I am one of seven mental health clinicians, including a
psychiatrist, who have been working with Inmate Craver since he
arrived at PBSP.
3. Inmate Craver was endorsed to PBSP as Enhanced Outpatient
Program (EOP) status.
4. When he arrived at PBSP, he was immediately sent to the
Infirmary to a Mental Health Crisis Bed (MHCB).
5. While at the Infirmary, Inmate Craver’s mental health status was
reduced from EOP to Correctional Clinical Case Management
(CCCMS), making him eligible for classification committee review
for placement in the PBSP General Population (GP) following
release from the MHCB.
6. Inmate Craver’s level of care was categorized as CCCMS
because it was determined that his mental health crisis had been
treated and any remaining constellation of mental health
signs/symptoms did not constitute a major mental illness.
Additionally, the reviewing treatment team determined that his high
level of functioning following MHCB treatment was in line with
CCCMS level of care as opposed to a higher level such as EOP.
7. Higher-functioning inmates who are inadvertently made EOP
level of care may harass, intimidate, and pressure lower-functioning
EOP inmates.
8. Inmate Craver was discharged to GP housing on May 18, 2015.
Inmate Craver made a suicidal gesture causing him to be readmitted
to the MHCB on May 20, 2015, where he remains pending further
evaluation.
9. While in a MHCB, Inmate Craver has access to twenty-four
hour nursing care, as well as therapy and counseling.
10. Inmate Craver has stated to staff that he is not safe in GP. This
information was forwarded to custodial staff for review. It is my
understanding that Inmate Craver did not provide sufficient
3

1

information to custodial staff to preclude him from placement in GP
housing.

2
11. Mental Health Staff determine the level of mental health care
and pass information representing a risk of safety and security to
the appropriate authorities. Inmate Craver’s safety concerns were
deferred to custody for further action.

3
4
5

(Id. at 1-2.)
The Warden has also provided the declaration of PBSP Correctional Counselor (“CC”)

6
7

Walch. (ECF No. 136-2.) CC Walch states, in relevant part,

8

10. Inmate Craver has stated to staff that he is not safe in GP, but
Inmate Craver cannot identify any specific enemies on the grounds
or any specific reason why he is unsafe in general population.

9
10

11. Given the threats Inmate Craver made against staff and other
inmates, it has been recommended that Inmate Craver be placed in
the Administrative Segregation Unit (ASU) upon his release from
the infirmary until a decision can be made as to permanent housing.

11
12
13

(Id. at 2.)
After reviewing the declarations of Dr. Limon and CC Walch, the undersigned finds that

14
15

injunctive relief pursuant to the All Writs Act is not warranted. Plaintiff was transferred to PBSP

16

after being classified as requiring the EOP level of care. This classification was “inadvertent,” as

17

plaintiff was reclassified as requiring the CCCMS level of care shortly after his transfer to PBSP,

18

making him eligible for housing in the general population. These circumstances apparently

19

fueled plaintiff’s allegations that his transfer to PBSP was retaliatory.
However, it is clear from CC Walch’s declaration that officials at PBSP are aware of

20
21

plaintiff’s security concerns. According to CC Walch, plaintiff’s security concerns cannot be

22

substantiated because plaintiff is unable to identify any specific enemies or give specific reasons

23

why he is unsafe in the general population.
Because plaintiff’s safety concerns cannot be substantiated, and because plaintiff is

24
25

currently housed in administrative segregation rather than the general population, plaintiff’s

26

motion for federal protection should be denied.1

27
28

1

Plaintiff has previously filed motions alleging fears of attack by prison officials. On September
30, 2013, while housed at Lancaster, plaintiff filed a motion for federal protection alleging that
4

1
2
3
4

Accordingly, IT IS HEREBY ORDERED that the Clerk shall serve a copy of this order on
Deputy Attorney General Andrea Sloan; and
IT IS HEREBY RECOMMENDED that plaintiff’s motion for federal protection (ECF
No. 131) be denied.

5

These findings and recommendations are submitted to the United States District Judge

6

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

7

after being served with these findings and recommendations, any party may file written

8

objections with the court and serve a copy on all parties. Such a document should be captioned

9

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

10

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

11

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

12

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

13

Dated: June 17, 2015

14
15
16
17

Cr1344.fed

18
19
20
21
22
23
24
25
26
27
28

prison officials made threatening comments to him. (ECF No. 74.) Invoking the All Writs Act,
the court ordered the Lancaster Warden to file a response to these claims. (ECF No. 76.) After
reviewing the Warden’s response, on December 30, 2013, the court denied plaintiff’s September
30, 2013 motion for federal protection. (ECF No. 87.)
On June 18, 2014, plaintiff filed another motion for federal protection, alleging that prison
officials at Lancaster had placed a “hit” on plaintiff. (ECF No. 108.) Invoking the All Writs Act,
the court ordered the Lancaster Warden to file a response to this motion. (ECF No. 109.) After
reviewing the Warden’s response, on August 22, 2014, the court denied plaintiff’s June 18, 2014
motion for federal protection. (ECF No. 119.)
5