Childs v. State of California et al

Filing 76

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/07/15 ORDERING plaintiff's motion to amend the complaint 63 is denied. Also, RECOMMENDING that plaintiff's motion for a preliminary injunction 73 be denied. MOTION for PRELIMINARY INJUNCTION 73 referred to Judge Troy L. Nunley. 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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E. CHILDS,

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Plaintiff,

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No. 2:13-cv-670-TLN-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. He has filed a motion to amend the complaint and a motion requesting “a temporary

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injunction hold on plaintiff for (120) days.” ECF Nos. 63, 73. As discussed below, both motions

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must be denied.

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I.

Motion to Amend (ECF No. 63)
The deadline for filing motions to amend under the court’s discovery and scheduling order

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was October 17, 2014. ECF No. 35. Plaintiff filed his motion to amend on January 20, 2015,

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three months after the deadline had passed. A scheduling order may be modified upon a showing

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of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he

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cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Notwithstanding the tardiness of his motion, plaintiff does not seek to modify the

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scheduling order, and there is no good cause basis for doing so. Plaintiff seeks to add six
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defendants, purportedly discovered through “new evidence and documents.” ECF No. 63. But

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plaintiff actually named two of the six proposed defendants – Roxas and Charles – in the May 10,

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2013 complaint, which the court dismissed with leave to amend. ECF No. 5 at 2; ECF No. 10.

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Apart from his conclusory reference to “new” evidence, plaintiff fails to provide any explanation

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for his failure to seek amendment to add the six defendants in a timely manner. Because he fails

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to demonstrate good cause to amend, his motion must be denied.

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Plaintiff’s motion is also procedurally defective in that it is not accompanied by a

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proposed amended complaint. Twice now, the court has informed plaintiff that any motion to

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amend “must be accompanied by a proposed amended complaint that is rewritten or retyped so

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that it is complete in itself without reference to any earlier filed complaint.” See ECF No. 35 at 4

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n.1 (citing E.D. Cal. Local Rule 220); ECF No. 41. Plaintiff’s motion fails to comply with this

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requirement.

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II.

Motion for Injunctive Relief (ECF No. 73)
Plaintiff also requests a court order preventing him from being transferred to another

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prison. He fears that a transfer will impair his access to legal resources, thereby jeopardizing his

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ability to comply with the discovery deadlines established by the court.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm 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) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may
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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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

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

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Plaintiff fails to allege that he will suffer irreparable harm absent an injunctive order from

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the court preventing CDCR from transferring him to another institution. He asserts, without any

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evidentiary support, that he is going to be transferred to another prison in the very near future.

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Defendants, however, submit evidence showing that due to a medical hold that was recently

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extended to September 1, 2015, plaintiff cannot be transferred at this time. ECF No. 75.

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Defendants also point out that, even if plaintiff were transferred, it would not cause irreparable

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harm, as plaintiff could seek modification of the scheduling order if a transfer interfered with his

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ability to comply with the discovery deadlines. For these reasons, the motion must be denied.

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The court also notes that prisoners have no Fourteenth Amendment liberty interest in

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avoiding being transferred to another prison (or being housed in a particular institution). See

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Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27 (1976);

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United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (per curiam). Inmates have “no

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justifiable expectation” that they will be incarcerated in any particular prison, and transferring an

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inmate to another prison does not infringe a protected liberty interest. Olim, 461 U.S. at 245;

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Vitek v. Jones, 445 U.S. 480, 489 (1980); see also Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.

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1985) (due process protections generally do not apply when prison officials change an inmate's

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place of confinement, “even though the degree of confinement may be different and prison life

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may be more disagreeable in one institution than in another”).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend (ECF No. 63)
is denied.
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Further, IT IS HEREBY RECOMMENDED that plaintiff’s motions for a preliminary
injunction (ECF No. 73) be denied.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 7, 2015.

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