Marquette v. Negouchi et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 07/28/15 denying 31 Motion to Appoint Counsel. Plaintiff has 30 days from the date of this order in which to file an opposition or statement of non-opposition in r esponse to the motion to dismiss. Also, RECOMMENDING that plaintiff's motion for a preliminary injunction 26 be denied as moot. MOTION for PRELIMINARY INJUNCTION 26 referred to Judge Morrison C. England Jr. 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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ROBERT MARQUETTE,
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No. 2:14-cv-1790 MCE DAD P
Plaintiff,
v.
ORDER AND
NEGOUCHI, et al.
FINDINGS & RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner proceeding pro se with an action for alleged violations of his
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civil rights, pursuant to 42 U.S.C. § 1983. His complaint alleges numerous acts of retaliation by
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correctional officers because of his sexual orientation, his relationship with his same-sex partner,
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or both. (See Screening Order (ECF No. 16) at 3.)
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On December 8, 2014, plaintiff filed a written request asking this court to issue an order
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enjoining the California Department of Corrections and Rehabilitation (CDCR) from transferring
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him or his partner to another prison. (See ECF No. 26.) Plaintiff alleged at the time that he had
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heard “oral confirmation” that officials were planning a transfer in retaliation for his decision to
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pursue this lawsuit against the defendants. (Id.) The court has docketed the request as a motion
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for preliminary injunction.
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A preliminary injunction represents the exercise of a far-reaching power not to be
indulged except in a case clearly warranting it. See Dymo Indus. v. Tapeprinter, Inc., 326 F.2d
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141, 143 (9th Cir. 1964). “A preliminary injunction . . . is not a preliminary adjudication on the
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merits but rather a device for preserving the status quo and preventing the irreparable loss of
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rights before judgment.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422
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(9th Cir. 1984). Thus a federal court should not issue a preliminary injunction unless it is
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necessary to prevent an injury to the plaintiff’s person or that would impair the court’s ability to
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grant effective relief in a pending action.
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“The proper legal standard for preliminary injunctive relief requires a party to demonstrate
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‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
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absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction
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is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), citing
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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal quotations omitted). In
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cases brought by prisoners involving conditions of confinement, any preliminary injunction “must
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be narrowly drawn, extend no further than necessary to correct the harm the court finds requires
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preliminary relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. §
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3626(a)(2).
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A plaintiff cannot, as a general matter, obtain injunctive relief against non-parties.
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“Unrelated claims against different defendants belong in different suits[.]” George v. Smith, 507
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F.3d 605, 607 (7th Cir. 2007). However, a federal court does have the power to issue orders in
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aid of its own jurisdiction, 28 U.S.C. § 1651(a), and to prevent threatened injury that would
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impair the court’s ability to grant effective relief in a pending action. See Sierra On-Line, Inc. v.
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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d
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863 (9th Cir. 1989).
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Plaintiff served his last filing in this case on June 15, 2015. (See ECF No. 51.) At that
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time, plaintiff remained incarcerated at Mule Creek State Prison, where he was assigned when he
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filed this lawsuit as well as when he filed the request for an injunction against his transfer.
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However, on July 28, 2015, court staff confirmed with CDCR that plaintiff had been granted
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parole the day before, July 27, 2015. Indeed, as of the date of this order, CDCR’s online inmate
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locator no longer lists plaintiff as an inmate in the custody of that agency.
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Generally, when a prisoner complains of unconstitutional conditions of confinement and
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is transferred to another facility, a claim for injunctive relief from those conditions becomes
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moot. See Brady v. Smith, 656 F.2d 466, 468 (9th Cir.1981); Darring v. Kinchoe, 783 F.2d 874,
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876 (9th Cir.1986); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1990). Parole and release from
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custody have the same effect. Therefore plaintiff’s request for injunctive relief against his or his
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partner’s transfer to another prison should be denied as moot.1 See Walker v. Huston, 689 F.2d
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901, 902-03 (9th Cir.1982).
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Plaintiff has also requested the appointment of counsel. The United States Supreme Court
has ruled that district courts lack authority to require counsel to represent indigent prisoners in §
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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain
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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to
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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find
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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will
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therefore be denied.
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Finally, the court notes that several defendants have filed a motion to dismiss (ECF No.
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46), but plaintiff has not filed an opposition or statement of non-opposition to the motion, as
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required by Local Rules 230(c) and 230(l). Plaintiff is admonished that failure to respond to the
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motion to dismiss allows the court to find that he has abandoned his claims and to enter a
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voluntary dismissal of this case for failure to prosecute. See Local Rule 110 and Federal Rule of
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Civil Procedure 41(b). Therefore, plaintiff will be granted thirty days from the date of this order
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in which to file an opposition or statement of non-opposition to the pending motion to dismiss.
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Failure to comply with or otherwise respond to this order will result in a recommendation that this
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case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and the Local Rules.
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Mootness is “a prudential jurisdictional question antecedent to the merits of the preliminary
injunction motion, not a merits question incorporated therein[.]” S.E.C. v. Banc de Binary Ltd.,
964 F.Supp.2d 1229, 1238 (D. Nev. 2013). Therefore, the court makes no finding and expresses
no opinion as to whether plaintiff can state a cognizable, valid legal claim based on the threatened
transfer of his same-sex partner to another prison.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The motion for appointment of counsel (ECF No. 31) is denied.
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2. Plaintiff has thirty days from the date of this order in which to file an opposition or
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statement of non-opposition in response to the motion to dismiss (ECF No. 46).
IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary injunction
(ECF No. 26) be denied as moot.
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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 served and filed 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: July 28, 2015
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