Lavery v. Dhillon

Filing 108

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/26/2016 ORDERING within 30 days, plaintiff shall return the attached "Notification to Court" form indicating whether he wishes to proceed with this action. IT IS RECOMMENDED that plaintiff's 81 motion for preliminary injuctive relief and a temporary retraining order be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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Plaintiff,

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No. 2:13-cv-2083 MCE AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

B. DHILLON, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. This action proceeds on the first amended complaint against

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defendants Dhillon, Rading, Ditomas, and Clark for inadequate medical care in violation of the

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Eighth Amendment. ECF No. 30. Plaintiff is currently incarcerated at California Medical

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Facility (“CMF”) in Vacaville, California, where the alleged violations of plaintiff’s rights took

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place.

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I.

Motion for Preliminary Injunctive Relief and Temporary Restraining Order

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Plaintiff has filed a motion for preliminary injunctive relief and a temporary restraining

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order. ECF No. 81. In his motion, plaintiff describes an incident that occurred on November 23,

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2015 during his physical therapy session at CMF. Id. at 2. Plaintiff alleges that as he was

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reaching for the parallel bars, at his therapist’s direction, “something ripped/tore [in plaintiff’s]

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lower right back/upper butt cheek area.” Id. Plaintiff was given a heat pad, which he lay down
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with for approximately twenty minutes. Then, “without any warning or any kind of notice,” his

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physical therapist lifted his right foot and right leg and placed it on top of a physical therapy ball,

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causing plaintiff excruciating pain. Id. An emergency crew took plaintiff to the emergency room

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and “put a[n] ice pack under his right butt cheek.” Id. at 2-3.

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Thirty to forty minutes later, a nurse told plaintiff that he had to leave the emergency

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room. Id. at 3. Plaintiff explained that he was still in severe pain and could not leave on his

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own.1 Thirty minutes thereafter, another nurse told plaintiff that the doctor wanted him to leave.

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Plaintiff “could not understand this” because “the doctor always comes to . . . ask you questions.”

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Id. Plaintiff alleges that while he was talking to the nurse, he saw defendant Dr. Dhillon in

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another part of the emergency room. Dr. Dhillon looked at plaintiff, gave plaintiff a “dirty look,”

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and then looked away. Id.

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Plaintiff asserts that plaintiff has never had a physical therapist move any part of his body

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without asking or informing him beforehand. Plaintiff contends that he is being retaliated against

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and asserts that physical therapists and medical staff “should not be forcing any limb or any other

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part of the body to go where it cannot go.” Id. at 3-4. Plaintiff further alleges that defendant

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Dhillon has in the past spoken to plaintiff about “things that shouldn’t properly be discussed

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without . . . the court’s attention.” Id. at 3. Plaintiff alleges that he will suffer “irreparable harm

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and further injury” without court intervention. Id. at 4.

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A. Legal Standards

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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 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.” Fed. R. Civ. P. 65(b)(1)(A). The

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purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller

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hearing. The standard for issuing a temporary restraining order is essentially the same as that for

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issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d

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Plaintiff alleges that he is confined to a wheelchair. ECF No. 81 at 4.
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832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and

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preliminary injunctions is “substantially identical”).

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In order to prevail on a motion for injunctive relief, the moving party must demonstrate

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that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the

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absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) that the relief

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sought is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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The Ninth Circuit has held that injunctive relief may issue, even if the moving party cannot show

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a likelihood of success on the merits, if “‘serious questions going to the merits’ and a balance of

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hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,

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so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the

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injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

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1135 (9th Cir. 2011). Under either formulation of the principles, preliminary injunctive relief

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should be denied if the probability of success on the merits is low. Johnson v. California State

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Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (“‘[E]ven if the balance of hardships tips

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decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is

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a fair chance of success on the merits.’” (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670,

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675 (9th Cir. 1984))).

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B. Discussion
Although it is not entirely clear, plaintiff appears to seek an order enjoining his physical

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therapist, and possibly other medical staff at CMF, from moving plaintiff’s limbs without his

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consent during his physical therapy sessions and/or from retaliating against plaintiff for the

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instant lawsuit. However, plaintiff has alleged no facts suggesting that his physical therapist was

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aware of this lawsuit, or that his therapist’s actions were in any way connected to the defendants

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in this action. To the extent plaintiff asserts that his physical therapist, or other medical staff,

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might injure him in the future by moving his limbs without his consent or by engaging in

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unspecified acts of retaliation, plaintiff’s allegations are entirely speculative. Speculative injury

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does not constitute irreparable harm. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668,

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674 (9th Cir. 1988); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.
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1984). Accordingly, plaintiff has failed to show that he is likely to suffer irreparable harm.

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Moreover, the court is unable to grant injunctive relief against plaintiff’s physical therapist

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and other medical staff because they are not parties to the instant lawsuit. A district court has no

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authority to grant relief in the form of a temporary restraining order or permanent injunction

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where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584

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(1999) (“Personal jurisdiction, too, is an essential element of the jurisdiction of a district . . .

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court, without which the court is powerless to proceed to an adjudication.”) (citation and internal

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quotation omitted); Paccar Int’l, Inc. v. Commercial Bank of Kuwait, S.A.K., 757 F.2d 1058,

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1061 (9th Cir. 1985) (vacating district court’s order granting preliminary injunction for lack of

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personal jurisdiction). Plaintiff also provides no specific facts to show that his physical therapist

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was acting “in active concert or participation” with defendants. Fed. R. Civ. P. 65(d)(2); Zenith

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Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969) (“[A] nonparty with notice

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cannot be held in contempt until shown to be in concert or participation.”). Because the court

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lacks jurisdiction over plaintiff’s physical therapist, and other unidentified medical staff, the

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motion for injunctive relief must be denied. If plaintiff wishes to pursue a claim against his

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physical therapist, he must file a new civil rights action. See George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (unrelated claims against different defendants belong in different suits).

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With respect to defendant Dhillon, plaintiff appears to assert, based on the “dirty look” he

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received from across the room, that defendant was the doctor who ordered plaintiff to leave the

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emergency room and that he did so in retaliation for the instant lawsuit. To the extent plaintiff’s

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motion can be interpreted to assert that defendant will retaliate against plaintiff in the future

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without court intervention, the undersigned finds plaintiff’s allegations too speculative to warrant

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relief. See Caribbean Marine Servs. Co., 844 F.2d at 674. Plaintiff’s general allegation that he

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has been injured in the past by other medical staff2 and will therefore suffer harm in the future is

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insufficient. Furthermore, while plaintiff makes a vague reference to improper conversations he

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It appears that plaintiff is referring an incident that occurred on August 17, 2012, when a nurse
allegedly hit plaintiff’s sciatic nerve when giving him an injection. See ECF No. 81 at 4; ECF
No. 30 at 3.
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had with defendant on other occasions, it is not clear what these conversations were about or how

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they show that plaintiff is likely to suffer irreparable harm in the future in the absence of

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injunctive relief. Because plaintiff has alleged only a speculative injury, the undersigned will not

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recommend issuing injunctive relief and does not reach the issue of likelihood of success on the

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merits.

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II.

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Plaintiff also filed a document entitled “Motion To Dismiss Without Prejudice,”

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indicating that he would like his case to be dismissed while he pursues other avenues of relief.3

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ECF No. 101. However, plaintiff subsequently filed a request for appointment of counsel, ECF

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No. 104, followed by a request for court assistance, ECF No. 105. Based on plaintiff’s request

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for counsel and request for assistance, it appears that plaintiff may not wish to have his case

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dismissed. However, plaintiff’s intentions remain unclear.

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Plaintiff’s “Motion to Dismiss”

In order to clarify whether plaintiff wishes to move forward with his case, plaintiff will be

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required to fill out the attached form entitled “Notification to Court.” Plaintiff will inform the

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court whether he wishes to proceed with his case, or have his case dismissed, by checking the

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appropriate box on the form. In other words, if plaintiff wishes to dismiss this case, he should

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check the first box. If plaintiff wishes to move forward with this case and does not want his case

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to be dismissed, he should check the second box. Plaintiff will also indicate, by checking the

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appropriate box, whether he is interested in a settlement conference.

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Plaintiff is advised that he is not required to provide any explanation on the form or

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prepare any additional documents at this time. He should simply check the appropriate boxes on

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the form and return it to the court.

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The court will rule on plaintiff’s “motion to dismiss,” request for counsel, and request for

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assistance after plaintiff returns the attached Notification to the court.

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Defendants filed statements of non-opposition to plaintiff’s motion. ECF Nos. 102, 103.
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III.

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Plaintiff’s motion for a preliminary injunction and temporary restraining order should be

Summary

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denied because plaintiff’s physical therapist is not a party to this lawsuit, and plaintiff’s

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allegations with respect to defendant Dhillon are too speculative to warrant relief. If plaintiff

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wishes to bring a claim against his physical therapist, he will need to file a separate lawsuit.

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The court has not ruled on plaintiff’s motion to dismiss because it is not clear whether

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plaintiff still wishes to dismiss this case. In order to clarify whether plaintiff wishes to dismiss

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this case, plaintiff must fill out the attached “Notification to Court” form and return it to the court.

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Plaintiff is not required to include any explanation on the form. He should simply check the

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appropriate boxes, sign and date the form, and return it to the court.
The court will rule on plaintiff’s pending motion to dismiss, motion for appointment of
counsel, and request for assistance after plaintiff has returned the Notification form.

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IV.

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In accordance with the above, IT IS HEREBY ORDERED that within thirty (30) days

Conclusion

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from the filing date of this order, plaintiff shall return the attached “Notification to Court”

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form indicating whether he wishes to proceed with this action.

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IT IS FURTHER RECOMMENDED that plaintiff’s motion for preliminary injunctive
relief and a temporary restraining order (ECF No. 81) be denied.
These findings and recommendations are submitted to the United States District Judge

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assigned to this 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, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Due to exigencies in the court's calendar, no extensions of time will

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be granted. Plaintiff is advised that failure to file objections within the specified time may waive

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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: August 26, 2016

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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No. 2:13-cv-2083 MCE AC P

Plaintiff,
v.

NOTIFICATION TO COURT

B. DHILLON, et al.,

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Defendants.

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Check One:

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______ Plaintiff wants to dismiss this case without prejudice.

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______ Plaintiff does not want to dismiss this case.

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Check One:

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______ Plaintiff is interested in a settlement conference.

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______ Plaintiff is not interested in a settlement conference.

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_____________

______________________________

Date

Plaintiff’s Signature

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