White v. Smyers et al

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/16/14 RECOMMENDING that plaintiff's motion for immediate injunctiverelief (ECF No. 39 ) be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER HOWARD WHITE,

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Plaintiff,

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No. 2:12-cv-2868 MCE AC P

v.

FINDINGS AND RECOMMENDATIONS

D. SMYERS, et al.,

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Defendants.

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

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action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s

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motion for a temporary restraining order filed on June 2, 2014. ECF No. 39.

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I.

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First Amended Complaint
In his first amended complaint, plaintiff alleged that various medical staff at High Desert

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State Prison (“HDSP”) were deliberately indifferent to his serious medical needs while he was

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housed there between September 22, 2010 and March 27, 2013. ECF No. 23 at 2. Plaintiff

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required ongoing medical treatment for a spinal condition, a Baker’s cyst on his right knee, as

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well as an additional surgery to repair a total knee replacement that had previously been done

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without success. ECF No. 23 at 3-4.

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This court also found that the first amended complaint stated a colorable claim for a
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violation of the Americans with Disabilities Act against defendant Swingle in his official

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capacity. See ECF Nos. 24 (Findings and Recommendations), 32 (Order adopting Findings and

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Recommendations). In this claim, plaintiff alleged that Swingle violated the ADA when he

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refused and/or failed to secure proper accommodations for his disabilities.

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Defendants Lankford, Lee, Mayes, Miranda, Pomazal, Rofling, Schmidt and Swingle filed

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their answer to the complaint on June 5, 2014, after plaintiff filed the pending motion for a

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temporary restraining order. See ECF No. 40 (Answer).

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II.

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Motion for a Temporary Restraining Order
In his motion, plaintiff requests an order to force High Desert State Prison officials to

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schedule the total knee revision surgery called for by the last orthopedic surgeon within 15 days

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of his transfer to that facility. ECF No. 39 at 4. Based on his allegations of prior medical

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mistreatment at HDSP, plaintiff further requests that the court order HDSP officials to afford him

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with proper post-operative care and pain management for his knee and that they not take away his

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wheelchair or other ADA accommodations identified in existing CDCR 7410 forms. Id. at 16-17.

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Plaintiff has identified specific doctors who he wants to see within a very specific time frame

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following his transfer to HDSP. Id. Not related to his medical treatment, plaintiff also requests

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that HDSP staff not take away, withhold or destroy his legal papers or “assault, murder, or maim

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him in anyway… or otherwise harass, intimidate or retaliate against him… during the rest of his

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confinement.” Id. at 17. Absent such an order, plaintiff contends that he will suffer irreparable

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harm. Id.

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All of plaintiff’s requests are based on “the demonstrated probability” that CDCR officials

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are planning on returning plaintiff to HDSP to finish out the last 36 months of his prison sentence.

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ECF No. 39 at 2. This “probability” is based on a March 13, 2014 Unit Classification Committee

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decision to transfer plaintiff to Salinas Valley State Prison’s sensitive needs yard with an alternate

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placement of HDSP’s sensitive needs yard, because these are the only institutions that can

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accommodate all of his medical needs. See ECF No. 39 at 92-93. The transfer was deemed non-

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adverse since it was due to a battery on plaintiff that occurred on March 5, 2013 while housed at

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the Substance Abuse Treatment Facility. Id. at 92.
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Attached to plaintiff’s motion are over 50 pages of medical records that date from 2006 to

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2014. See ECF No. 39 at 29-95. These records, which the court has reviewed, concern plaintiff’s

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ongoing medical needs as well as numerous evaluations and their results over the years. Plaintiff

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has also attached numerous patient-inmate health care appeals that he filed at various prisons

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concerning his need for a total knee replacement revision surgery.

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II.

Legal Standard for Injunctive Relief

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Plaintiff seeks a temporary restraining order.1 A temporary restraining order is an

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extraordinary and temporary “fix” that the court may issue without notice to the adverse party if,

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in an affidavit or verified complaint, the movant “clearly show[s] that immediate and irreparable

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injury, loss, or damage will result to the movant before the adverse party can be heard in

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opposition.” See Fed. R. Civ. P. 65(b)(1)(A). The purpose of a temporary restraining order is to

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preserve the status quo pending a fuller hearing. See generally, Fed. R. Civ. P. 65; see also, L.R.

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231(a). It is the practice of this district to construe a motion for temporary restraining order as a

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motion for preliminary injunction. Local Rule 231(a); see also, Aiello v. OneWest Bank, 2010

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WL 406092, *1 (E.D.Cal.2010) (providing that “‘[t]emporary restraining orders are governed by

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the same standard applicable to preliminary injunctions’”) (citations omitted).

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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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To the extent that this is an ex parte motion for a TRO without notice, the undersigned notes that
there are stringent requirements to be imposed under Fed. R. Civ. P. 65 for issuance of such an
order, which plaintiff clearly has not met. Reno Air Racing Ass' n., Inc. v. McCord, 452 F.3d
1126, 1131 (9th Cir. 2006). Rule 65(b)(1) permits issuance of a TRO without “notice to the
adverse party or its attorney, only if: (A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury ... will result to the movant before the adverse
party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.”
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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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Finally, as a general rule this court is unable to issue an order against individuals who are

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

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100 (1969).

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III.

Analysis

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A.

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The court is unable to determine the likelihood of success on the merits at this early stage

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of the case. Just prior to plaintiff's filing of the instant motion, defendants filed an answer to the

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first amended complaint. Furthermore, a discovery and scheduling order has just been issued by

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the court. ECF No. 44. In this instance, there is an inadequate showing of a likelihood of success

Likelihood of Success on the Merits

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on the merits to support the “drastic remedy” of a preliminary injunction. Munaf v. Geren, 553

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U.S. 674, 689–90 (2008).

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B.

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Plaintiff's motion fails to establish the likelihood that he will be subject to irreparable

Likelihood of Irreparable Harm

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harm absent the issuance of an order compelling HDSP prison officials to perform knee revision

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surgery because it is not even clear that plaintiff will be transferred back to HDSP. While

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plaintiff’s medical conditions are certainly serious, the actual likelihood that plaintiff will be

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transferred to HDSP is not at all clear in light of the UCC’s designation of HDSP as an alternate

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transfer institution. ECF No. 39 at 92-93. Plaintiff's claim that his transfer to HDSP is a

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“probability” is both speculative and conclusory since the recommendation was made in March

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2014 and as of today’s date plaintiff has yet to be transferred. See

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http://inmatelocator.cdcr.ca.gov/ (searchable by plaintiff’s name). The documents attached to

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plaintiff’s motion indicate that the UCC decided to transfer plaintiff to Salinas Valley State

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Prison, which is located in the Northern District of California and is therefore not subject to an

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injunction issued by this court. In light of the speculative nature of the prison transfer, plaintiff

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has failed to establish the likelihood of irreparable harm.

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C.

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Here there is nothing to tip the balance of equities in plaintiff's favor. Federal courts must

Balance of the Equities

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remember that the duty to protect inmates' constitutional rights does not confer the power to

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manage prisons or the capacity to second-guess prison administrators, for which we are ill-

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equipped.” Bruce v. Ylst, 351 F.3d 1283, 1290 (9th Cir. 2003); see also Turner v. Safley, 482

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U.S. 78, 84-85 (1987) (“Prison administration is ... a task that has been committed to the

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responsibility of ... [the legislative and executive] branches, and separation of powers concerns

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counsel a policy of judicial restraint.”). In the healthcare context, this court is wary of stepping in

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and substituting its judgment for that of medical professionals within the prison system especially

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when plaintiff’s request requires determining medical urgency. Absent the existence of

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exceptional circumstances not present here, the court will not intervene in the day-to-day

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management of prisons. See e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (prison officials
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entitled to substantial deference); Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (disapproving

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the involvement of federal courts in the day-to-day-management of prisons.)

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D.

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It is unclear what public interest could be served by intervening in a prison’s health care

Public Interest

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decision making. Therefore, this factor does not tip the balance in favor of a temporary

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restraining order.

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IV.

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Conclusion
Plaintiff has failed to establish a likelihood of success on the merits, a likelihood that he

will suffer irreparable harm in the absence of preliminary injunctive relief, that the balance of
equities tips in his favor, or that the injunction is in the public interest.
Accordingly, IT IS RECOMMENDED that plaintiff's motion for immediate injunctive
relief (ECF No. 39) be denied.
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)(1). Within twenty-one 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 reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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

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DATED: June 16, 2014

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