Florence v. Nangalama et al

Filing 59

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 09/18/14 recommending that plaintiff's motion for injunctive relief 58 be denied without prejudice. Motion for injunctive relief 58 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID FLORENCE,

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No. 2:11-cv-3119 GEB KJN P

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

A.W. NANGALAMA, et al.,
Defendants.

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Plaintiff is a state prisoner currently housed at R. J. Donovan Correctional Facility

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(“RJD”), proceeding without counsel. This civil rights action is proceeding on plaintiff’s claims

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against defendants Sarver, Baider, Lopez and Colter, in which he alleges that defendants

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retaliated against plaintiff for filing administrative appeals, and plaintiff’s Eighth Amendment

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claims against defendants Dr. Nangalama, Bakewell and Sarver, in which plaintiff alleges

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defendants were deliberately indifferent to plaintiff’s serious medical needs concerning his

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treatment with liquid Methadone. (ECF No. 19.) Each defendant is employed at California State

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Prison, Sacramento (“CSP-SAC”), and the alleged violations arose from incidents that occurred

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while plaintiff was housed at CSP-SAC.

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On September 15, 2014, plaintiff filed a motion styled, “Motion for a court order due to

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plaintiff being in imminent danger to have R.J. Donavan Warden and his agents refrain from

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further retaliation against plaintiff.” (ECF No. 58.) The court construes plaintiff’s motion as a
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motion for injunctive relief. As set forth more fully below, the court finds that plaintiff’s motion

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for injunctive relief should be denied without prejudice.

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Plaintiff’s Motion

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Plaintiff claims that the Warden and his agents at RJD are retaliating against plaintiff for

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filing inmate appeals against them. As background, plaintiff claims that he has been diagnosed

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with degenerated discs in his spine, arthritis in his back, pinched nerves in his left shoulder and

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wrist, infection in the bladder, and enlarged prostate and left testicle. (ECF No. 58 at 2.) Based

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on such medical condition, plaintiff states that Dr. Nangalama prescribed plaintiff chronos for

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waist chains, extra mattress, and lower bunk. (Id.) Plaintiff claims he was transferred to RJD

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because it is a medical facility with an Enhanced Outpatient Program (“EOP”) for inmates with a

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custody level of level-3. Plaintiff is a level 3 inmate.

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On March 7, 2014, a nurse practitioner at RJD issued plaintiff a chrono for a temporary

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lower bunk for ninety days. However, plaintiff claims that because the RJD chief medical officer

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(“CMO”) refused to sign off on the lower bunk chrono within five days, plaintiff was housed on

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an upper bunk by Correctional Officer R. Davis. (ECF No. 58 at 3.) Plaintiff alleges that he “has

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been writing to [the] RJD Warden explaining medical conditions and how Dr. G. Casian and

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other medical staff [have] been deliberately indifferent to plaintiff’s serious medical needs and

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how they have been having [correctional officers] retaliate against plaintiff by filing false

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disciplinary reports against him,” but the warden has not taken any corrective action. (ECF No.

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58 at 3.) Plaintiff also claims that Captain Sancheze told plaintiff that “if plaintiff files one more

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appeal, she was sending plaintiff to the hold and transfer[ring] him to another prison.” (Id.)

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Plaintiff appears to allege that his life was placed in danger because plaintiff was housed

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on an upper bunk. (ECF No. 58 at 3.) On April 22, 2014, plaintiff fell off the top bunk, hitting

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his arm, twisting his ankle, and falling on his back. (ECF No. 58 at 3.) On May 8, 2014, plaintiff

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went to see Dr. Casian and told her he needed to have his lower bunk chrono renewed, that he fell

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off the top bunk, and that plaintiff was still experiencing pain in his back, genitals, ankle and arm.

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Plaintiff contends that Dr. Casian told plaintiff that she was not renewing the lower bunk chrono.

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When plaintiff complained of stomach pain, Dr. Casian allegedly told plaintiff to return and she

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would give plaintiff something for his stomach. (ECF 58 at 4.)

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When plaintiff returned to the medical clinic, he alleges he witnessed a correctional

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officer assault an inmate. (ECF No. 58 at 4.) On May 11, 2014, plaintiff wrote a CDC 7362 to

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psychiatrist P. Naranjo, explaining that he had witnessed an assault on an inmate, and stated that

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“Dr. Casian was trying to set [plaintiff] up to hurt her by the way she disrespect [sic] him when he

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goes to see her,” and plaintiff “is never going to see her again.” (ECF No. 58 at 4.)

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The CDC 7362 form states:
I need to see Psychiatrist Naranjo due to the pain [that] I’m
experiencing in my back & genitals which is causing me to become
more depressed and more vexed, paranoid due to doctor G. Casian
trying to kill me. I know that she [is] trying to set me up to try to
hurt her but I [won’t], I’m never going to see her again. I went to
see her on 5/8/14 & told her I fell off the top bunk on my back &
twisted my ankles & [am] in pain from that & had problem
urinating & #2 & she did nothing.
(ECF No. 58 at 15.)
Plaintiff further alleges that on May 21, 2014, Captain Sanchae [sic] had Lt. R Davis place

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plaintiff in administrative segregation (“ASU”), stating that plaintiff made threats toward Dr.

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Casian. (ECF No. 58 at 5.) On May 29, 2014, plaintiff appeared before the Institution

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Classification Committee (“ICC”) for the alleged threats. Plaintiff claims that he showed the ICC

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“about 15 inmate appeals he wrote against Dr. Casian for assault again plaintiff, deliberate

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indifference to plaintiff’s medical needs, and falsifying documents to cover up her misdeeds.”

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(ECF No. 58 at 5.) Plaintiff claims that the ICC concluded that the CDC 7362 was not a threat,

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“but elected to retain plaintiff in the ASU,” and that “Warden D. Paramo stated to give him two

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weeks and he was going to speak with some medical people.” (ECF No. 58 at 5.) Plaintiff was

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placed on non-disciplinary status, which plaintiff contends means he can retain all personal

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property allowed in general population, except for his TV because all electric plugs are removed

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from ASU cells. However, plaintiff contends prison officials are punishing him by refusing to

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allow him his personal clothing, pictures, CD player, radio, legal materials pertinent to the instant

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case, or to make phone calls. (ECF No. 58 at 6.) Plaintiff alleges he has other cases to file in the
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Central District but that prison officials refuse to give them to him. Plaintiff claims he was told

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by the property officer that his supervisor told him that plaintiff “could only have one cubic feet

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worth of legal material and to get anymore plaintiff has to trade the one cubic foot for another one

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cubic foot.” (ECF No. 58 at 7.) Plaintiff claims this is not the policy, but that he has received no

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response to his inmate request for interview concerning this deprivation. (ECF No. 58 at 7.)

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Plaintiff contends that after he left the ICC hearing, the ICC conspired to transfer plaintiff,

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obtained a sixty day extension to keep plaintiff in the ASU, and then “conspired with Dr. Casian

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to back date a CDC-128-B chrono stating she has safety concerns because plaintiff made implied

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threats toward her.” (ECF No. 48 at 6.) Plaintiff claims this was done to prevent his return to

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Facility A where Dr. Casian works.

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Further, plaintiff alleges that the appeals coordinators are impeding plaintiff’s efforts to

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exhaust his administrative remedies by rejecting his appeals for any reason, and then cancelling

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the appeal when plaintiff attempts to follow their instructions. (ECF No. 58 at 7.)

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Finally, plaintiff states that because of the alleged retaliation and the failure to provide

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him medical treatment, he has been on a hunger strike “for about a month” to get prison officials

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to speed up his transfer. (ECF No. 58 at 6.) Plaintiff claims they are delaying his transfer

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because RJD “gets more money” for inmates housed in ASU than for inmates housed in general

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population. (ECF No. 58 at 8.) Plaintiff states that he “is already receiving mental health

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treatment for depression and know that plaintiff is vulnerable to suicide and that’s the reason

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plaintiff is in the EOP program[.] [T]hese actions [have] significantly made plaintiff[‘s]

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depression wors[e].” (ECF No. 58 at 8.)

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Plaintiff concedes that he has no constitutional right to be housed at a particular prison,

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but seeks an order directing the Secretary of the California Department of Corrections and

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Rehabilitation to require the RJD warden to provide plaintiff with (a) his legal materials pertinent

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to the instant case so that plaintiff can conduct discovery; (b) all other legal materials that plaintiff

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has to file with courts in other districts; and (c) “redirect Dr. Casian to another position at RJD

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and release plaintiff back to Facility A pending transfer.” (ECF No. 58 at 8.) In the alternative,

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plaintiff seeks an order directing the RJD warden to immediately transfer plaintiff. (Id.)
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Plaintiff’s motion was signed on September 10, 2014. (ECF No. 58 at 8.)

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Plaintiff’s Exhibits
The May 29, 2014 ASU placement notice sets forth the following reasons for plaintiff’s

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placement in the ASU:

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On Monday, May 21, 2014, information was received that . . .
[plaintiff] submitted a referral with threatening content toward Dr.
G. Casian, writing “she is trying to set me up to hurt her but I
won’t.” A review of [plaintiff’s] past contact with Dr. Casian
reveal that he was continually uncooperative and disrespectful
during his appointments with her. Dr. Casian expressed concerns
that [plaintiff’s] threatening behavior toward her and his symptoms
of mental illness and behavior of poor impulse control and violence
may lead to his assaulting her. Dr. Casian feels that [plaintiff]
should not be allowed to return to the facility as he may carry out
violence toward her. Based on the aforementioned, [plaintiff is]
deemed a threat to the Safety of the institution. Therefore, [plaintiff
is] being placed in [ASU] pending an Administrative Review of
[plaintiff’s] Program and Housing needs. As a result of this
placement, [plaintiff’s] custody level, privilege group, Work Status,
and visiting status are subject to change. [Plaintiff] is a participant
in the Mental Health Services Delivery System (MHSDS) at the
EOP level of care. TABE SCORE 9.0.

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(ECF No. 58 at 17.) The ICC initial ASU and annual review report states that plaintiff has a

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“temporary lower bunk (but not tier) restriction through 6/7/14.” (ECF No. 58 at 19.) At the

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hearing, the MHSDS representative described plaintiff’s likelihood of decompensation. The ICC

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reviewed plaintiff’s case for violence, noting that his underlying criminal offense was first degree

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murder and attempted murder. Plaintiff’s in-prison record showed he has been engaged in several

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fights with inmates over the years, and had one SHU term for battery on an inmate. (ECF No. 58

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at 19.) The ICC retained plaintiff in the ASU on “non-NDS status,” referred the case for

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placement options, and for a sixty day extension. (Id.) Plaintiff disagreed with the ICC’s actions,

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asked to be released from the ASU, and “said he does not want to hurt anyone, and that his in-

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prison record will verify he does not have a history of harming staff.” (Id.)
Dr. Casian’s May 19, 2014 chrono states that she was informed of plaintiff’s implied

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threat by Dr. Cirket, who made her aware of plaintiff’s “level of agitation.” (ECF No. 58 at 21.)

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Dr. Casian stated that plaintiff: “has a history of violence, he was uncooperative and disrespectful

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with me every time he had an appointment. Due to my personal experience with [plaintiff] and

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his recent statement; I have a serious safety concern.” (ECF No. 58 at 21.)

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On July 24, 2014, another ICC hearing was held to review plaintiff’s retention in the

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ASU. (ECF No. 58 at 23.) The MHSDS representative described plaintiff’s likelihood of

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decompensation, but no details of such discussion are provided. Plaintiff’s case was referred to

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the “Difficult to Place [“DTP”]” conference call, and plaintiff’s ASU housing was extended

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through July 28, 2014. However, after discussion, the DTP referral was rescinded and plaintiff

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was referred for placement at SAC-IV 180 EOP or Salinas Valley State Prison (“SVSP”) 180

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EOP. (ECF No. 58 at 23.) Plaintiff was retained in ASU for non-disciplinary status and endorsed

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for transfer to SAC-IV or SVSP-IV. Plaintiff again disagreed with ICC’s actions, and presented

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“as dejected.” (ECF No. 58 at 23.)

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On August 14, 2014, Captain Stout, RJD, issued a general chrono that plaintiff proclaimed

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he was on a hunger strike, and that by lunch on August 14, 2014, plaintiff had missed nine meals.

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Captain Stout interviewed plaintiff on August 14, 2014, and plaintiff “indicated that his protest is

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based on his retention in the [ASU] and that he wants to be transferred.” (ECF No. 58 at 25.)

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Plaintiff also “indicated that he is not getting adequate medical treatment as he has a bad back, an

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infection on his testicles and pain in his bladder. He said that he has put in the ‘sick call’ slips.”

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(ECF No. 58 at 25.) Captain Stout noted that plaintiff “had no food items in his cell, and cell

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inspections will continue hereafter. Based on his hunger strike, all healthcare protocols should be

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followed.” (ECF No. 58 at 25.)

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Standards

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The party requesting preliminary injunctive relief must show that “he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d

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1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious

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questions” version of the sliding scale test for preliminary injunctions remains viable after

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Winter).

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The principal purpose of preliminary injunctive relief is to preserve the court’s power to

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render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to

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demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary

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

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

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omitted). Implicit in this required showing is that the relief awarded is only temporary and there

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will be a full hearing on the merits of the claims raised in the injunction when the action is

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brought to trial. In cases brought by prisoners involving conditions of confinement, any

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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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In addition, as a general rule this court is unable to issue an order against individuals who

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are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100 (1969) (hereafter “Hazeltine”).

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Discussion

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No defendants are located at RJD. Therefore, plaintiff seeks injunctive relief against

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individuals who are not named as defendants in this action. This court is unable to issue an order

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against individuals who are not parties to a suit pending before it. See Hazeltine, 395 U.S. at 112.

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Moreover, plaintiff raises new allegations not included in the operative complaint, and not

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relevant to the claims proceeding in this action. Injunctive relief is an “extraordinary remedy that
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may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter,

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555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The purpose of

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preliminary injunctive relief is to maintain the status quo. “A preliminary injunction may not

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issue when it is not of the same character as that which may be granted finally and when it deals

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with matters outside the issues in the underlying suit.” 11A Wright & Miller § 2947 (2010).

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Plaintiff must also demonstrate that his claims are likely to succeed, but plaintiff’s claims cannot

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succeed if the allegations in his motion for a preliminary injunction were not raised in the

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operative pleading. See Hunter v. Hazelwood, 2006 WL 925142, at *4 (W.D. Wash. Apr.10,

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2006) (denying motion for preliminary injunction because it contained new allegations not

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included in the original complaint that did not involve the defendants and appeared not to have

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been exhausted administratively). Thus, plaintiff cannot bring new allegations into this suit by

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means of a motion for a preliminary injunction.

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In addition, plaintiff has failed to demonstrate that his life is in imminent danger. Rather,

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the exhibits provided by plaintiff demonstrate that plaintiff’s transfer has been complicated by his

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status as an inmate serving a sentence of life without parole coupled with his need for an EOP

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placement. (ECF No. 58 at 23.) The undersigned is concerned that plaintiff has embarked on a

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voluntary hunger strike, but the exhibit provided by plaintiff demonstrates that prison officials are

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monitoring plaintiff and his hunger strike in compliance with health care protocols. Indeed,

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plaintiff does not contend that his health is deteriorating, and he does not seek medical care as

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relief. Rather, plaintiff’s requested remedy is focused on his access to legal materials and transfer

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out of ASU either back to Facility A at RJD or to a different prison. Absent facts not alleged

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here, such concerns do not exhibit imminent danger. Moreover, as plaintiff acknowledges,

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inmates do not have a constitutional right to be housed at a particular facility or institution or to

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be transferred, or not transferred, from one facility or institution to another. Olim v. Wakinekona,

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461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Johnson v.

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Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam).

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Thus, plaintiff does not demonstrate that in the absence of preliminary relief he will
imminently suffer irreparable harm. “Speculative injury does not constitute irreparable injury
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sufficient to warrant granting a preliminary injunction.” Caribbean Marine, 844 F.2d at 674,

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citing Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Rather, a

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presently existing actual threat must be shown, although the injury need not be certain to occur.

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See Hazeltine, 395 U.S. at 130-31; F.D.I.C. v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997),

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cert. denied, 523 U.S. 1020 (1998); Caribbean Marine, 844 F.2d at 674.

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Accordingly, plaintiff must file any complaint as to unlawful placement or retention in the

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ASU, retaliation, or deliberate indifference to his serious medical needs by prison officials

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employed at RJD in the United States District Court for the Central District of California.

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With regard to plaintiff’s claims concerning access to his legal materials, plaintiff has

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failed to demonstrate that he is unable to access these materials by following the protocol in place

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for inmates housed in the ASU. Plaintiff notes that the property officer informed plaintiff that he

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is only allowed one cubic foot of legal materials in his ASU cell, but that plaintiff may change out

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such property with legal materials stored elsewhere, so long as plaintiff retains only one cubic

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foot of legal material in his cell. Although plaintiff disputes this policy, the undersigned is

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familiar with such policy for inmates housed in administrative segregation. See e.g., Asberry v.

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Cate, 2013 WL 3490724, *2 (E.D. Cal. July 10, 2013) (RJD property officer confirmed on June

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27, 2013, that inmates assigned to administrative segregation at RJD can have up to one cubic

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foot of legal materials of his choice in his cell, and excess materials are stored in receiving and

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release. If an inmate wants to review stored legal materials, he must submit a legal property

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request form, which can take one to seven days before the inmate is able to review his legal

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materials.) Plaintiff does not allege that he requested to review his legal materials, or to exchange

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his legal materials according to policy, but rather claims the stated policy is wrong and that he

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sought an interview about his inability to have more than one cubic foot of property at a time.

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(ECF No. 58 at 7.) Thus, plaintiff’s allegations concerning access to his legal materials are

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unavailing.

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Finally, as to plaintiff’s discovery in the instant action, the discovery and scheduling order

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was not issued until September 9, 2014, so the incidents at RJD did not unduly delay plaintiff’s

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ability to propound discovery. If plaintiff is unable to obtain his legal materials pertaining to his
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claims in the instant action by following the protocol governing inmates housed In the ASU at

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RJD, plaintiff may seek relief at that time, provided he can demonstrate his efforts to comply with

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the protocol governing such access.

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Conclusion
For all of the above reasons, IT IS HEREBY RECOMMENDED that plaintiff’s motion

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for injunctive relief (ECF No. 58) be denied without prejudice.

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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 served and filed 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: September 18, 2014

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