Espey v. Deuel Vocational Institution

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/19/2014 RECOMMENDING that plaintiff's 40 request for injunctive relief be denied. Referred to Judge Troy L. Nunley; Objections 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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FLOYD ESPEY,

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No. 2:13-cv-2147 TLN KJN P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

DEUEL VOCATIONAL INSTITUTION,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed November 18,

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2013, against Dr. Awatani, Dr. Baath and Dr. Street. (ECF No. 15.) Plaintiff alleges that he

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received inadequate medical care for mental health issues and a seizure disorder. All defendants

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are located at the Deuel Vocational Institution (“DVI”).

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Pending before the court is plaintiff’s request for injunctive relief filed May 5, 2014.
(ECF No. 40.) For the following reasons, plaintiff’s motion should be denied.

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Plaintiff is currently housed at Mule Creek State Prison (“MCSP”) located in Ione,

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California. On March 18, 2014, plaintiff filed a notice of change of address indicating his recent

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transfer to MCSP. In the pending motion, plaintiff alleges that he is being denied anti-seizure

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medication by officials at MCSP. (ECF No. 40.) In particular, plaintiff alleges that prison

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officials discontinued phenobarbital and gabapentin, which had been effective in treating his
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seizures. (Id.) Plaintiff alleges that because he is not receiving adequate seizure medication, he

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has suffered ongoing seizures. (Id.) Plaintiff alleges that MCSP have given him a helmet to wear

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to prevent injuries to his head as a result of the seizures. (Id.)

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In support of the pending motion, plaintiff filed declarations by inmates Cossairt and Burr.

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Inmate Cossairt states that on April 16, 2014, he heard “man down.” (ECF No. 43 at 1.) Inmate

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Cossairt then saw staff pull plaintiff from his cell, unconscious and bleeding from his forehead.

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(Id.) Inmate Burr states that he was plaintiff’s cellmate on April 16, 2014. (Id. at 3.) Inmate

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Burr states that on that date, he and plaintiff were talking in the cell. (Id.) Suddenly, plaintiff

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made a cry and fell, hitting his head hard. (Id.) Inmate Burr states that plaintiff’s body then made

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multiple jerks. (Id.)
Plaintiff has previously filed documents with the court alleging inadequate seizure

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medication. On November 4, 2013, the undersigned ordered the Office of the Attorney General

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to respond to these claims. (ECF No. 10.) In response, on November 18, 2013, the Attorney

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General’s Office filed the declaration of Dr. Fox, Chief Physician at DVI, where plaintiff was

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then incarcerated. (ECF No. 14-1.)

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Dr. Fox stated that while plaintiff had a seizure disorder, it was not clear whether he

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suffered from true seizures or pseudo seizures. (Id. at 2.) Dr. Fox acknowledged that prior to

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arriving at DVI, plaintiff received gabapentin and phenobarbital to treat seizures. (Id.) Because

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the use of gabapentin and phenobarbital was restricted by the California Department of

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Corrections and Rehabilitation (“CDCR”) because of the high potential for misuse by inmates,

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plaintiff was tapered off these restricted medications. (Id.) Plaintiff was placed on Keppra and

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Dilantin. (Id. at 2-3.) Dr. Fox stated that these drugs are equally effective as gabapentin and

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phenobarbital in treating plaintiff’s seizure disorder. (Id. at 3.)

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Dr. Fox also stated that plaintiff’s medical records indicated that plaintiff refused to take
his anti-seizure medications on multiple occasions. (Id.)

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No defendants are located at MCSP, where plaintiff is currently housed. Thus, the

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pending motion seeks injunctive relief against individuals who are not named as defendants. This

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court is unable to issue an order against individuals who are not parties to a suit pending before it.
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See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).
The undersigned further finds that requiring prison officials at MCSP to respond to

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plaintiff’s motion pursuant to the All Writs Act is not warranted. Under the All Writs Act, “all

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courts established by Act of Congress may issue all writs necessary or appropriate in aid of their

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respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

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It is “not a grant of plenary power to the federal courts.” Plum Creek Lumber Co. v. Hutton, 608

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F.2d 1283, 1289 (9th Cir. 1979). In appropriate circumstances, it may be used against people or

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entities not parties to the underlying litigation “who are in a position to frustrate ... the proper

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administration of justice.” United States v. New York Tel. Co., 434 U.S. 159, 174 (1977).

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Use of the All Writs Act is appropriate in cases where prison officials, not named as

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defendants, allegedly have taken action that impedes a prisoner’s ability to litigate his case. See,

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e.g., Turner v. Sacramento Cnty. Sheriff, No. 2:09–cv–0017 WBS KJN P, 2010 WL 4237023, at

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*2 (Oct. 21, 2010), report and recommendation adopted by 2010 WL 5317331 (E.D.Cal. Dec.20,

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2010) (stating a writ might issue if plaintiff had shown that restricted access to his legal material

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unreasonably denied him access to court); Johnson v. Sullivan, No. 1:06–cv–01089 ALA (P),

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2008 WL 5396614, at *7 (E.D.Cal. Dec.23, 2008) (granting a request for injunctive relief

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directing CDCR to provide inmate calls with counsel based on showing that prison officials were

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depriving him of the ability to communicate with counsel).

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In the pending motion, plaintiff does not allege that MCSP officials have taken actions

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that may impede his ability to litigate this action, such as restricting his access to his legal

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materials. Instead, plaintiff’s allegations of inadequate medical care raise substantive issues that

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should be raised in a separate civil rights action. While it is possible that an untreated seizure

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disorder may impede a prisoner’s ability to prosecute his action, plaintiff has presented evidence

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that he allegedly suffered from one seizure. While plaintiff alleges that he suffered from ongoing

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seizures, he does not identify when these other seizures occurred.

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The undersigned also observes that plaintiff’s pending motion does not allege that he is

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being completely denied anti-seizure medication. Instead, plaintiff alleges that he is being denied

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gabapentin and phenobarbital. Dr. Fox addressed this issue in his declaration discussed above.
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For the reasons discussed above, the undersigned finds that invocation of the All Writs

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Act is inappropriate. Because no defendants are located at MCSP, where plaintiff is currently

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incarcerated, plaintiff’s request for injunctive relief should be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s request for injunctive
relief (ECF No. 40) 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.” 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 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: May 19, 2014

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