Gipbsin v. Kernan, et al

Filing 160

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/16/16 recommending that plaintiffs motions for injunctive relief filed June 17, October 10, and November 8, 2016 146 , 158 , 159 be denied. Motions 146 , 158 , and 159 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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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:12-cv-0556 GEB DB P

FINDINGS AND RECOMMENDATIONS

SCOTT KERNAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Before the court are plaintiff’s three motions for injunctive relief

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filed June 17, October 20, and November 8, 2016. For the reasons set forth below, this court

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recommends denial of each motion.

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Background

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Plaintiff is proceeding on a second amended complaint. Therein, he alleges that the

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defendants failed to transfer him to a mental health facility in a timely fashion pursuant to a Lassen

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County Superior Court order. According to plaintiff’s complaint and the attached exhibits, a Lassen

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County Superior Court judge determined that plaintiff was not mentally competent to stand trial and

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ordered him committed to Atascadero State Hospital in 2007. Instead of transferring plaintiff to

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Atascadero State Hospital, however, defendants allegedly kept plaintiff in administrative segregation

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at High Desert State Prison and then transferred him to Corcoran State Prison. Plaintiff alleges that

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more than two years passed before prison officials complied with the Lassen County Superior Court

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order and transferred him to the Salinas Valley Psychiatric Program in 2009. Plaintiff seeks

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declaratory relief, damages for the “psychological and mental shock and stress,” and punitive

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damages. (Sec. Am. Compl. (ECF No. 53.) at 1-9 and Attachs.)

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At screening, the previously-assigned magistrate judge determined that plaintiff’s second

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amended complaint stated a cognizable claim for relief against defendants Kernan, Ehle, Felker,

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Wong, Peddacour, Gamez, Perez, Grannis, Zamora, Jackson, Wagner, Schmollinger, Grimes,

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McCann, and Safi for their involvement in the delay of his mental health treatment in violation of the

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Fourteenth Amendment. (ECF No. 65)

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Legal Standards for Injunctive Relief
A temporary restraining order is an extraordinary measure of relief that a federal court

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may impose without notice to the adverse party only if, in an affidavit or verified complaint, the

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movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the

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movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A).

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Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary

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restraining order shall be granted in the absence of actual notice to the affected party and/or

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counsel[.]” In the absence of such extraordinary circumstances, the court construes a motion for

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temporary restraining order as a motion for preliminary injunction. See, e.g., Aiello v. One West

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Bank, No. 2:10–cv–0227–GEB–EFB, 2010 WL 406092, at *1–2 (E.D. Cal. Jan. 29, 2010).

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

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

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

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008). 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. Baldrige, 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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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the

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

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after 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 9 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is

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that the relief awarded is only temporary and there will be a full hearing on the merits of the

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claims raised in the injunction when the action is brought to trial. The Ninth Circuit Court of

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Appeals recently considered the relationship between a request for preliminary injunctive relief

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and the underlying action. The court held that there must be a “sufficient nexus between the

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claims raised in a motion for injunctive relief and the claims set forth in the underlying complaint

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itself.” Pacific Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir.

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2015). That relationship is sufficient to support a preliminary injunction where the injunctive

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relief sought is “‘of the same character as that which may be granted finally.’” Id. (quoting De

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Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)). “Absent that relationship or

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nexus, the district court lacks authority to grant the relief requested.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary

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

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

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harm.” 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action

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is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110

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(1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in

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which he is not designated as a party . . . .”).

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Analysis

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I.

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In his motion filed June 17, 2016, plaintiff complains that the meals he is being served are

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Motion for Preliminary Injunction Re Meals

neither appropriate to his religion nor healthy. (ECF No. 146.) Plaintiff contends that his
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religion requires vegetarian meals. He states that while he has in the past been served a varied

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diet, he is now being served “strictly beans.” Petitioner claims the daily provision of beans

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violates a vegetarian nutrition memo, which was apparently provided to him by the prison’s

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medical health care services. (Id. at 1, 15-16.) Plaintiff seeks the provision of nutritional meals

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and $100 per month to purchase health food items. (Id. at 2.)
Plaintiff’s request for preliminary injunctive relief should be denied because the relief he

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seeks is not a subject of his underlying suit. The subject matter of plaintiff’s request for an

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injunction is the meals he is served at California State Prison – Sacramento (“CSP-Sac”), where

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he is currently incarcerated. However, the subject matter of plaintiff’s second amended complaint

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is the delay in his mental health treatment caused by the failure of the defendants to transfer him

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from High Desert State Prison (“HDSP”) to Atascadero State Hospital. (See ECF No. 53 at 1.)

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There is no nexus between the injunctive relief plaintiff seeks and the relief he seeks in his

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underlying complaint. Therefore, plaintiff’s motion is not cognizable in this case. See Pacific

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Radiation Oncology, 810 F.3d at 636.

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II.

Motions for Injunctive Relief Re Dental Care

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In his motions filed October 20 and November 8, 2016, plaintiff claims he is suffering pain as

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the result of a dental procedure on October 14, 2016. (ECF Nos. 158, 159.) In his October 20

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motion, plaintiff states that he seeks “to be placed in the United States Military Internal Affairs

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Custody.” (ECF No. 158 at 1.) In his November 8 motion, plaintiff seeks an order requiring

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“defendants to cure the damaged and destroyed teeth,” appointing an expert to “assess the

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matter,” or placing him in protective custody. (ECF No. 159 at 1.)

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Plaintiff’s October and November motions suffer the same problems as the June motion.

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Plaintiff’s request for assistance with his dental problems at CSP-Sac bears no relationship to the

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request in his underlying complaint for damages due to the delay in mental health treatment while

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he was at HDSP. Again, this court will recommend denial of plaintiff’s motions.

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If plaintiff feels his diet or dental care at CSP-Sac amount to violations of his civil rights

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under 42 U.S.C. § 1983, he may seek relief through the grievance and appeal process at the

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prison. Once all administrative remedies are exhausted, plaintiff can avail himself of the judicial

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process.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff’s motions for

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injunctive relief filed June 17, October 10, and November 8, 2016 (ECF Nos. 146, 158, 159) be

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denied.

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These findings and recommendations will be 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. The 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 filed and served 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 result in waiver of

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the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 16, 2016

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DLB:9
DLB1/prisoner-civil rights/gipb0556.tro

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