Craver v. Hasty et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/17/13 ORDERING that the Clerk of the Court shall serve a copy of these findings and recommendation on the Warden of California State Prison- Lancaster, P.O. B ox 4430, Lancaster, California, 93539; and on Deputy Attorney General Aldo S. Zilli; it is RECOMMENDED that plaintiffs motion for immediate federal protection 74 , 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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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s September 30, 2013 motion for
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“immediate federal protection,” which the undersigned construes as a motion for injunctive relief.
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For the following reasons, the undersigned recommends that plaintiff’s motion be denied.
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Discussion
This action proceeds on plaintiff’s claim that on February 2, 2011, while he was housed at
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High Desert State Prison (“HDSP”), defendants Rayner and Hasty used excessive force in
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violation of the Eighth Amendment when they sprayed O.C. spray into plaintiff’s cell during a
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cell search. This action is set for trial on February 24, 2014 before the Honorable Troy L.
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Nunley.
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Plaintiff is now housed at California State Prison-Lancaster (“Lancaster”). In the pending
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motion, plaintiff alleges that he is homicidal and is hearing voices telling him to defend his life.
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(ECF 74 at 2.) Plaintiff alleges that on September 24, 2013, he went before the Prison
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Classification Committee. (Id.) Plaintiff alleges that committee member Facility Captain “Ppfer”
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looked over the February 1, 2011 incident report, apparently referring to the incident on which
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this action is based, and stated, “Fuck you, fuck your life, you wanna sue cops I don’t care if you
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die. Put somebody in his cell so he can kill his fucking ass!” (Id.) Plaintiff alleges that he is in
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imminent danger based on the comments made by the Facility Captain at the September 24, 2013
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Classification Committee hearing. Plaintiff requests that he be removed from Lancaster.
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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 Co., 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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On October 9, 2013, the undersigned issued an order stating that the court was concerned
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that it may lose jurisdiction if plaintiff was in imminent danger as alleged in the pending motion.
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(ECF No. 76.) Pursuant to the All Writs Act, the undersigned ordered the Warden of Lancaster to
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file a status report addressing plaintiff’s allegations regarding the alleged imminent threat to his
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safety. (Id.)
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On October 15, 2013, the Warden of Lancaster filed a status report addressing plaintiff’s
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safety concerns. (ECF No. 77.) Attached to the status report is the declaration of A. Pfeil, the
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Chairperson of plaintiff’s Classification Committee who plaintiff alleges made the threatening
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comments. (ECF No. 77-1.) A. Pfeil states that at no time during the hearing did he use
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obscenities toward plaintiff, threaten to place another inmate in plaintiff’s cell to harm him, or
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refer to any of plaintiff’s prior litigation against correctional staff. (Id. at 2.) A. Pfeil also states
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that he does not have access to plaintiff’s litigation history and had no knowledge of plaintiff’s
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litigation history at the time of the hearing. (Id.)
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Also attached to the Warden’s status report is the declaration of M. Soto, a Correctional
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Counselor at Lancaster. (ECF at 77-2.) M. Soto was present at the Classification Committee
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hearing where plaintiff alleges the threatening comments were made. (Id. at 1.) M. Soto states
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that he does not recall A. Pfeil using obscenities toward plaintiff during the hearing or making
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threats to place someone in plaintiff’s cell who could harm him. (Id. at 2.)
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Also attached to the Warden’s status report is the declaration of T. Tang, a Clinical Social
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Worker at Lancaster. (ECF No. 77-3.) T. Tang states that at the request of the Attorney
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General’s Office, on October 10, 2013, he conducted a mental health evaluation of plaintiff
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regarding his prior statements that he had homicidal thoughts and was hearing voices telling him
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to defend his life. (Id. at 1.) T. Tang states that during this evaluation, plaintiff reported no
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current auditory hallucinations and T. Tang did not observe plaintiff having auditory
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hallucinations. (Id. at 2.) T. Tang also states that plaintiff denied any current homicidal or
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suicidal ideations. (Id.) T. Tang states that during the mental health evaluation, plaintiff
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reiterated that he wanted to be on single cell status because of a prior incident in which his
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cellmate had a verbal altercation with staff at a different correctional institution and was pepper
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sprayed while both inmates were in the cell. (Id.)
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Also attached to the Warden’s status report is the declaration of Lancaster Litigation
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Coordinator N. Wilcox. (ECF No. 77-4.) N. Wilcox states that A. Pfeil does not have access to
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litigation records for plaintiff and at no time had he (N. Wilcox) provided A. Pfeil access to
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plaintiff’s litigation records. (Id. at 2.) N. Wilcox states that on October 3, 2013, Correctional
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Sergeant Priest interviewed plaintiff regarding his safety concerns. (Id.) Attached to N. Wilcox’s
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declaration is a copy of a 128-B General Chrono signed by plaintiff and Sergeant Priest and dated
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October 3, 2013. (Id.) This chrono states that plaintiff told Sergeant Priest that he does not have
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any safety concerns or owe any money and that he can remain housed on Facility D, but he is
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requesting a single cell. (Id. at 4.)
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 investigation into
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plaintiff’s claims does not support plaintiff’s allegations that the threatening statements were
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made. More importantly, plaintiff signed a chrono on or around October 3, 2013 stating that he
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does not have any safety concerns and that he can remain on Facility D. For these reasons, the
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undersigned recommends that plaintiff’s September 30, 2013 motion for immediate federal
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protection requesting a transfer away from Lancaster, construed as a motion for injunctive relief,
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be denied.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall serve a copy of
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these findings and recommendation on the Warden of California State Prison-Lancaster, P.O. Box
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4430, Lancaster, California, 93539; and on Deputy Attorney General Aldo S. Zilli;
IT IS HEREBY RECOMMENDED that plaintiff’s motion for immediate federal
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protection (ECF No. 74), 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: October 17, 2013
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cr1344.pi
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