Farley v. Virga, et al

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 4/10/2012 ORDERING that plaintiff's 22 motion for injunctive relief is DENIED without prejudice. (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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LEONARD FARLEY,

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Plaintiff,
vs.
TIM VIRGA, et al.,
Defendants.

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No. 2:11-cv-1830 KJN P

ORDER
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). By order filed March

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28, 2012, the United States Marshal was ordered to serve process on defendants Bal, Cannedy,

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Lizarraga, Mini, Sahota and Virga, based on plaintiff’s claims that on July 21, 2010, defendants

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were deliberately indifferent to his safety, and failed to protect plaintiff, subjecting him to cruel

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and unusual punishment in violation of the Eighth Amendment. Defendants have not yet

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appeared or been served with process. On April 6, 2012, plaintiff filed a second motion for

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preliminary injunction.

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Plaintiff claims he is being denied appropriate medical housing and care. Plaintiff

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allegedly has a cancerous tumor inside his stomach, which can become deadly if traumatized.

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Plaintiff alleges defendants put plaintiff’s life in danger by keeping plaintiff housed on one of the
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most dangerous mainline yards in California. Plaintiff alleges two violent racial riots occurred

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on B-Facility at New Folsom where plaintiff is housed. Plaintiff contends he will suffer

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irreparable harm if defendants are allowed to continue ignoring plaintiff’s serious medical needs.

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Plaintiff further contends that he will suffer irreparable harm if he is not transferred because

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plaintiff is at risk from the “race war;” that is, he is at risk of being attacked by Hispanic inmates

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because of the color of plaintiff’s skin. Plaintiff seeks transfer from New Folsom to California

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Medical Facility or California Men’s Colony.

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Plaintiff appended a January 19, 2010 memorandum to B Facility Staff and
Inmates concerning the modified program status implemented in response to a January 19, 2010

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racial riot on B Facility. (Dkt. No. 22 at 14.) Plaintiff also provided a May 20, 2011

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memorandum to B Facility Staff and Inmates regarding the modified program status

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implemented in response to a May 20, 2011 multiracial riot on B Facility. (Dkt. No. 22 at 15.)

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“The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009), quoting Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

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A Ninth Circuit panel has found that post-Winter, this circuit’s sliding scale

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approach or “serious questions” test survives “when applied as part of the four-element Winter

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test.” Alliance for Wild Rockies v. Cottrell, 2011 WL 208360, at *7 (9th Cir. Jan. 25, 2011).

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“That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply

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towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also

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shows that there is a likelihood of irreparable injury and that the injunction is in the public

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interest.” Id. In cases brought by prisoners involving conditions of confinement, any preliminary

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injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm

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

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Initially, the principal purpose of preliminary injunctive relief is to preserve the

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court’s power to render a meaningful decision after a trial on the merits. See 11A Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted

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above, in addition to demonstrating that he will suffer irreparable harm if the court fails to grant

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the preliminary injunction, plaintiff must show a “fair chance of success on the merits” of his

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claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982)

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(internal citation omitted).

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Plaintiff’s motion is premature. First, no defendant has been served with process

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or appeared in this action. At this early stage of the litigation, the court is unable to ascertain

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whether plaintiff is likely to succeed on the merits of his claims.

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Second, plaintiff’s motion is largely duplicative of the motions for injunctive

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relief filed herein on July 26, 2011, and on October 4, 2010, in Farley v. Capot, et al., 1:06-cv-

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1760 LJO MJS (Fresno Division).1 Plaintiff’s motion in the Fresno case was filed after the July

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21, 2010 incident at issue in the instant action. The court found plaintiff failed to demonstrate he

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was likely to suffer irreparable harm if plaintiff was not moved to one of the facilities requested.

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Id., Dkt. No. 58 at 3. The court found that “the evidence indicates [plaintiff’s] condition is stable

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with the current treatment regimen at [plaintiff’s] current facility.” Id. The court further noted

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that granting plaintiff’s “request to be transferred would disrupt, not maintain, the status quo.”

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Id. at 4. Finally, the court found that plaintiff was given the option of moving to the Out-Patient

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Housing unit (“OHU”) in plaintiff’s current facility, on recommendation by plaintiff’s primary

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care physician, but plaintiff apparently refused this reassignment. Id., at 2. The district court

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adopted the findings and recommendations. Id., Dkt. No. 60. Plaintiff filed an appeal, and on

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A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc.,
285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings have a direct relation to
matters at issue”) (internal quotation omitted).
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March 16, 2011, the Court of Appeals for the Ninth Circuit summarily affirmed the order

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denying plaintiff’s motion for preliminary injunctive relief. Id., Dkt. No. 68.

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Third, plaintiff’s claim that defendants are ignoring plaintiff’s serious medical

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need to be placed in a medical prison is belied by the evidence provided by plaintiff. Plaintiff

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submitted the September 22, 2010 letter from Dr. Preet Sahota, M.D., Chief Physician and

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Surgeon at California State Prison, Sacramento, who states there is no medical reason for

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plaintiff to be housed at either California Men’s Colony or California Medical Facility. (Dkt. No.

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22 at 38.) Moreover, plaintiff provided Dr. Sahota’s August 25, 2010 letter in which Dr. Sahota

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explained that plaintiff’s primary care physician recommended plaintiff’s housing at the OHU for

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plaintiff’s safety, but that it was not medically necessary for plaintiff to be housed in the OHU.

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(Dkt. No. 22 at 36.) Plaintiff apparently declined the OHU alternative housing assignment,

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because OHU housing would not allow plaintiff to program. (Dkt. No. 22 at 37.) Inmates do not

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have a constitutional right to be housed at a particular facility or institution or to be transferred,

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or not transferred, from one facility or institution to another. Olim v. Wakinekona, 461 U.S. 238,

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244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Johnson v. Moore, 948 F.2d

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517, 519 (9th Cir. 1991) (per curiam).

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Finally, although plaintiff claims his life is put at risk daily, plaintiff provides no

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factual allegations suggesting that it is likely plaintiff will suffer irreparable harm if he is not

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transferred to a medical prison. Plaintiff appears to argue that the fact that Facility B has

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experienced two race riots over a period of two years demonstrates he is at risk of imminent

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harm. However, the injuries at issue here were not incurred during the January 19, 2010, or May

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20, 2011 race riots. Rather, plaintiff’s instant injuries resulted from an altercation between three

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Black inmates and three Hispanic inmates on the B Facility yard on July 21, 2010, over one year

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and eight months ago. Plaintiff alleges no facts suggesting Facility B is at current risk for a racial

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riot, or that the May 20, 2011 modified program is still in operation. Thus, plaintiff fails to

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demonstrate that his present housing poses a threat of irreparable harm.
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For all of the above reasons, IT IS HEREBY ORDERED that plaintiff’s April 6,

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2012 motion for injunctive relief (dkt. no. 22) is denied without prejudice.

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DATED: April 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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