Wolinski v. McDonald et al

Filing 34

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/24/12 recommending that plaintiff's requests and motions for preliminary injunction and temporary restraining orders 7 , 8 , 12 , 14 , 15 , 27 should be denied. Motions 7 , 8 , 12 , 14 , 15 , 27 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, 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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KRZYSZTOF F. WOLINSKI,

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No. CIV S-11-1932-GEB-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

MIKE D. McDONALD, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions for preliminary injunction

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and temporary restraining orders1 (Docs. 7, 8, 12, 14, 15, 27). Plaintiff is requesting the court

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order prison officials to provide him medical treatment for his injuries, transfer him to another

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facility, return his legal documents, and to refrain from inappropriate conduct.

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S. Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a

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Some of these pleadings are not specifically identified as such, but are construed
so based on the relief plaintiff is requesting.
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lesser standard by focusing on the mere possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S. Ct. at 374). In addition, this

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court is unable to issue an order against individuals who are not parties to a suit pending before

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it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).

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Here, plaintiff is requesting the court order the warden and other prison officials

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to transfer him to a prison with an adequate law library. While the court acknowledges plaintiff

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has a First Amendment right to access the courts, which includes the right to an adequate law

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library, this case does not involve the adequacy of the law library at High Desert State Prison,

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plaintiff’s current location. See Bounds v. Smith, 430 U.S. 817, 828 (1977). Rather, the issues

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involved in this action are related to plaintiff’s allegations of Eighth Amendment violations for

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assaults he suffered at the hands of correctional officers. Plaintiff named the warden as a

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defendant to this action, but the undersigned has recently issued separate findings and

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recommendations that the warden and other uninvolved persons be dismissed from this action.

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As such, plaintiff is essentially requesting this court to issue an order against individuals who are

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not parities to the action, which the court is unable to do. In addition, the Supreme Court has

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concluded that the Constitution itself provides no liberty interest in staying at a particular

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institution, see Meachum v. Fano, 427 U.S. 215, 225-27 (1976) or in remaining in a prison in a

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particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983). Plaintiff has therefore

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provided no basis on which the court could issue such an order, and his request should be denied.

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Next, plaintiff requests the court to issue an order directing the warden to return

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documents which were confiscated from his cell and to stop all interception of his legal papers.

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Plaintiff does not identify what documents were taken, or whether those documents have
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anything to do with this action. In addition, he fails to identify the individuals who are

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interfering with his legal documents. Again, the court is unable to issue an order against any

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individual who is not a party to this action. To the extent plaintiff believes his right to access the

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court is being denied, he may utilize the inmate grievance system to rectify the situation, and/or

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proceed to legal action against those who are denying his access.

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Finally, plaintiff is requesting the court issue an order directing the prison officials

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to provide him medical care and stop further harassment. As to the request for an order directing

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medical treatment, plaintiff is again requesting the court issue an order directing the action of a

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non-party. The remaining defendants in this action consist of five correctional officers. There is

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nothing in plaintiff’s motion to indicate any of these five have control over his medical treatment.

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None of the officers are identified as medical personnel. If any of the remaining defendants do in

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fact have control over plaintiff’s medical treatment, he may file a new motion informing the court

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who has such control and again request an order directing a specific party to perform some

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necessary duty. Without such information, there is no basis for the court to issue such an order.

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As for plaintiff’s request for an order stopping the harassment, plaintiff fails to

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provide the court with sufficient information to support his argument that he will suffer

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irreparable injury without a restraining order, and fails to provide the court with sufficient

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information as to who is perpetuating the harassment. This case proceeds on plaintiff’s Eighth

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Amendment claims stemming from two different incidents wherein he claims he was attacked by

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five correctional officers in June 2011. As stated above, in order for a preliminary injunction to

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issue, plaintiff must show: (1) he is likely to succeed on the merits; (2) he is likely to suffer

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irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor;

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and (4) an injunction is in the public interest. See Stormans, 586 F.3d at 1127.

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In his current motions, he states he has been subjected to mistreatment in the form

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of harassment. He fails to identify specifically who has been harassing him, and whether any of

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the remaining defendants are involved. In addition, he indicates in his filings that he has been
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transferred on several occasions to administrative segregation, apparently for his own protection.

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It appears that the defendants were correctional officers he had contact with in general

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population. There is nothing in plaintiff’s filings indicating he is still in contact with the

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defendants, nor does he state he has been subject to further incidents involving the defendants.

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While there remains a possibility that the defendant may assault him again, such a possibility is

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insufficient. Plaintiff is required to show such action is likely. Plaintiff fails to meet this burden.

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Rather, his biggest concerns appear to be the lack of medical treatment and the prison not

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acknowledging his status as a pro se litigant. Neither of which are before the court in this action,

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and cannot support an irreparable harm argument. Plaintiff therefore fails to show the likelihood

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that he will suffer irreparable harm to support his request for a preliminary injunction.
Based on the foregoing, the undersigned recommends that plaintiff’s requests and

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motions for preliminary injunction and temporary restraining orders (Docs. 7, 8, 12, 14, 15, 27)

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should be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 24, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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