Real v. Soltanian-Zedeh et al

Filing 12

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/13/2011 ORDERING the AG and pertinent defendants, as set forth in this order, to file a response to plaintiff's 10 motion for TRO/preliminary injunctive relief, construed as a motion fo r protective order, within 14 days;the clerk to serve a copy of plaintiff's 10 motion, a copy of the 11 Service Documents Order, and a copy of the instant order upon Monica Anderson electronically and to serve the same three documents on the litigation coordinator and defendant Kettelhake at Mule Creek State Prison. (cc: Monica Anderson) (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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DOUGLAS REAL,

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Plaintiff,

No. CIV S-11-1821 GGH P

vs.
JALAL SOLTANIAN-ZADEH, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42

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U.S.C. § 1983. By separate order, the court has found the first amended complaint appropriate

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for service upon the defendants named therein, including A. Kettelhake. The gravamen of the

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first amended complaint is that defendants have been deliberately indifferent to a serious medical

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condition from which plaintiff suffers in violation of his Eighth Amendment rights.

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On December 12, 2011, plaintiff filed a motion for a preliminary injunction or a

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temporary restraining order, alleging that after he “very recently” saw one of the defendants for

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his medical condition, this defendant, Kettelhake, stated “oh, I see that you[’re] suing me,”

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shortly after which plaintiff was put before a committee and placed on a transfer list from Mule

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Creek State Prison (MCSP). See Motion at docket # 10. Although plaintiff has neglected to sign

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a declaration under penalty of perjury, he includes an exhibit which forms the basis for his claim
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that he was granted a hardship transfer to MCSP in 2005. Plaintiff alleges that his placement on

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a transfer list is wholly retaliatory for his having brought this lawsuit.

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The court construes plaintiff’s motion for injunctive relief as a motion for a

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protective order. Local Rule 72-302 of the Eastern District of California permits magistrate

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judges to handle all aspects of a prisoner’s case short of jury trial. It has also been interpreted as

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authorizing magistrate judges to issue orders under § 636(b)(1)(A) for non-dispositive motions or

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motions not involving injunctive relief. See also United States v. Raddatz, 447 U.S. 667, 673,

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100 S. Ct. 2406, 2411 (1980) (magistrate judge may hear any pretrial matter except “dispositive”

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motions).

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Therefore, the fact that parties are directed in their activities by a magistrate judge

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cannot, without more, transform the matter at hand into an “injunctive” relief matter governed by

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§ 636(b)(1)(B). See, e.g., Grimes v. City and County of San Francisco, 951 F.2d 236 (9th Cir.

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1991) (magistrate judge may compel a party to pay prospective sanctions of $500.00 per day

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during period of non-compliance with discovery orders to ensure compliance). It is only when

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the “injunctive” relief sought goes to the merits of plaintiff’s actions or to complete stays of an

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action that orders under § 636(b)(1)(A) are precluded. See, e.g., Reynaga v. Cammisa, 971 F.2d

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414 (9th Cir. 1992).

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Pursuant to Section 636, Title 28, United States Code, magistrate judges may

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determine any pretrial matter unless it is “dispositive” to the action, see United States v. Raddatz,

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447 U.S. 667, 673, 100 S. Ct. 2406 (1980), or seeks injunctive relief of the same character as that

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which may be finally granted by the action, see De Beers Consolidated Mines, Ltd. v. United

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States, 325 U.S. 212, 219-200, 65 S.Ct. 1130 (1945). See 28 U.S.C. § 636(b)(1)(A).

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A proper motion for injunctive relief must relate to the allegations of the

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complaint and seek an outcome that may ultimately be available in the action. If there is no such

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relation, injunctive relief is not properly sought. “[T]he purpose and effect of the injunction is to

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provide security for performance of a future order which may be entered by the court.” De Beers
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Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 219-220, 65 S.Ct. 1130 (1945). “Thus,

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a party moving for a preliminary injunction must necessarily establish a relationship between the

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injury claimed in the party’s motion and the conduct asserted in the complaint.” Devose v.

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Herrington, 42 F.3d 470, 471 (8th Cir.1994) (affirming district court’s order denying without

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hearing plaintiff’s motion for preliminary injunction on the ground that it had “nothing to do with

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preserving the district court’s decision-making power over the merits of [plaintiff’s] 42 U.S.C. §

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1983 lawsuit”) (citation omitted); cf., State of New York v. United States Metals Refining Co.,

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771 F.2d 796, 801 (3rd Cir. 1985) (affirming district court’s order granting preliminary

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injunction because relief requested was also available to the court pursuant to final judgment,

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making the distinction that “this is not a case where the preliminary injunction ‘deals with a

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matter lying wholly outside the issues in the suit,’ De Beers, 325 U.S. at 200 []”). Rule 65,

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Federal Rules of Civil Procedure, governing requests for injunctive relief, underscores this

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relevance requirement, pursuant to provisions allowing the hearing on preliminary injunction to

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be accelerated into a trial on the merits, preserving the right to jury trial if otherwise appropriate,

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and making evidence received at the hearing on preliminary injunction admissible at trial. None

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of these provisions would make sense if disputes outside the complaint, and on which no trial

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will be had, could be considered as proceedings for injunctive relief.

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Accordingly, since matters appropriate for injunctive relief (and therefore

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expressly outside the dispositive authority of the magistrate judge) are limited to the merits of an

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action, see, e.g., Reynaga v. Camisa, 971 F.2d at 416 (orders pursuant to § 636(b)(1)(A) may not

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include “motions for injunctive relief”), it follows that improperly denominated requests for

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injunctive relief, addressing matters extraneous to the complaint, may be addressed and finally

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determined by the magistrate judge. Such matters typically filed by plaintiff/prisoners attempt to

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have the court regulate every term and condition of their confinement simply because they are “in

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court,” regardless of the relation of the currently challenged activity to the claims set forth in the

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complaint.
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As is evident, an allegation of a retaliatory pending transfer does not go to the

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merits of claims of inadequate medical care. Accordingly, this matter may be handled by court

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order. However, before ruling on the motion, the court will consider the response of the state

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Attorney General’s Office and of defendant Kettelhake as well as that of any defendant named in

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the first amended complaint who may be a member of the committee referenced in the motion

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who placed plaintiff on the transfer list.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Attorney General and pertinent defendants, as set forth above, must file a

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response to plaintiff’s motion for a TRO/preliminary injunctive relief, filed on December 12,

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2011 (docket # 10), construed as a motion for a protective order, within fourteen (14) days of the

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date of this order.

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2. The Clerk of the Court is directed to serve a copy of plaintiff’s motion at

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docket # 10, a copy of the order at docket # 11, and a copy of the instant order upon Monica

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Anderson, Supervising Deputy Attorney General electronically and to serve the same three

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documents by mail upon the litigation coordinator and defendant Kettelhake at Mule Creek State

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Prison.

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DATED: December 13, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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real1821.ord

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