Farley v. Virga, et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 8/8/11 ORDERING that 6 Motion for Preliminary Injunction is DENIED without prejudice. (Dillon, M)

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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. By order filed July 26,

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2011, plaintiff was directed to file, within thirty days, an application to proceed in forma pauperis

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and a certified copy of plaintiff’s prison trust account statement. On July 26, 2011, plaintiff filed

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a motion for preliminary injunction.

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Plaintiff claims that he has a cancerous tumor inside his stomach, which can

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become deadly if traumatized. Plaintiff alleges defendants put plaintiff’s life in danger by

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keeping plaintiff housed on one of the most dangerous mainline yards in California. Plaintiff

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alleges two violent racial riots have occurred on B-Facility at New Folsom where plaintiff is

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housed. Plaintiff contends he will suffer irreparable harm if defendants are allowed to continue

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ignoring plaintiff’s serious medical needs. Plaintiff further contends that he will suffer

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irreparable harm if he is not transferred because plaintiff is at risk from the “race war,” that is, he
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is at risk of being attacked by Hispanic inmates because of the color of plaintiff’s skin. Plaintiff

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seeks transfer from New Folsom to California Medical Facility or California Men’s Colony.

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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, plaintiff’s complaint has not yet been
screened. No defendant has been served with process at this early stage of the litigation. Good
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cause appearing, plaintiff’s motion will be denied without prejudice to its renewal following the

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appearance of any defendant in this action.

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

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filed in Farley v. Capot, et al., 1:06-cv-1760 LJO MJS, on October 4, 2010.1 Plaintiff’s motion

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was filed after the July 21, 2011 incident at issue in the instant action. The court found plaintiff

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failed to demonstrate he was likely to suffer irreparable harm if plaintiff was not moved to one of

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the facilities requested. Id., Dkt. No. 58 at 3. The court found that “the evidence indicates

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[plaintiff’s] condition is stable with the current treatment regimen at [plaintiff’s] current facility.”

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Id. The court further noted that granting plaintiff’s “request to be transferred would disrupt, not

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maintain, the status quo.” Id. at 4. Finally, the court found that plaintiff was given the option of

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moving to the Out-Patient Housing unit (“OHU”) in plaintiff’s current facility, on

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recommendation by plaintiff’s primary care physician, but plaintiff apparently refused this

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reassignment. Id., at 2. The district court adopted the findings and recommendations. Id., Dkt.

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No. 60. Plaintiff filed an appeal, and on March 16, 2011, the Court of Appeals for the Ninth

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Circuit summarily affirmed the order denying plaintiff’s motion for preliminary injunctive relief.

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Id., Dkt. No. 68. Although plaintiff claims his life is put at risk daily, plaintiff alleges no further

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incidents of fighting other than the July 21, 2011 incident herein.

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Third, plaintiff provided the September 22, 2010 letter from Dr. Preet Sahota,

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M.D., Chief Physician and Surgeon at California State Prison, Sacramento, who states there is no

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medical reason for plaintiff to be housed at either California Men’s Colony or California Medical

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Facility. (Dkt. No. 6 at 38.) Moreover, plaintiff provided Dr. Sahota’s August 25, 2010 letter in

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which Dr. Sahota explained that plaintiff’s primary care physician recommended plaintiff’s

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housing at the OHU for plaintiff’s safety, but that it was not medically necessary for plaintiff to

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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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be housed in the OHU. (Dkt. No. 6 at 36.) Plaintiff apparently declined this alternative housing

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assignment. (Dkt. No. 6 at 37.) Inmates do not have a constitutional right to be housed at a

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particular facility or institution or to be transferred, or not transferred, from one facility or

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institution to another. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano,

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427 U.S. 215, 224-25 (1976); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam).

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Plaintiff has provided no probative medical evidence to contradict Dr. Sahota’s medical findings.

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For all of the above reasons, IT IS HEREBY ORDERED that plaintiff’s July 26,

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2011 motion for injunctive relief (dkt. No. 6) is denied without prejudice.

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DATED: August 8, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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