Canada v. Hamkar

Filing 22

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/28/16 ORDERING that Plaintiffs amended complaint (ECF No. 17 ) is STRICKEN; Plaintiffs motion for the appointment of counsel (ECF No. 16 ) is DENIED without pre judice; Defendants request to extend the discovery deadline (ECF No. 20 ) is GRANTED; The discovery deadline is continued to July 1, 2016, and the pretrial motions deadline is continued to September 23, 2016; and it is RECOMMENDED that plaintiffs motion for injunctive relief (ECF No. 17 ) be denied. Referred to Judge William B. Shubb. Objections to F&R due within 14 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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RONALD LEE CANADA,

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Plaintiff,

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v.

ORDER, REVISED SCHEDULING ORDER,
AND FINDINGS AND
RECOMMENDATIONS

HAMKAR,

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No. 2:14-cv-2990 WBS KJN P

Defendant.

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Plaintiff is a state prisoner, proceeding without counsel. This action is proceeding on

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plaintiff’s claims that defendant Dr. Hamkar was deliberately indifferent to plaintiff’s serious

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medical needs in violation of the Eighth Amendment. The court addresses multiple filings, as set

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forth below.

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1. Plaintiff’s Amended Complaint

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On January 27, 2016, plaintiff filed a document entitled “Amend Complaint,” in which he

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names the warden of California State Prison, Sacramento (“CSP-SAC”), and J. Lewis, and J.

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Burke, both employees at CSP-SAC. Plaintiff alleges that defendants Lewis and Burke retaliated

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against plaintiff for pursing his lawsuit by harassing and threatening plaintiff with physical

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violence if he continues to proceed with the lawsuit. (ECF No. 17 at 2.) Plaintiff claims that

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defendants Lewis, Burke, and other CSP-SAC employees refuse to process his CDCR 22 forms

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denying plaintiff due process of law. Further, plaintiff claims that when he used the prison
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grievance system, he was retaliated against. Plaintiff asks the court to grant a temporary

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restraining order enjoining defendants Lewis and Burke from threatening plaintiff and calling him

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racist slurs. (ECF No. 17 at 4.)

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On or about April 5, 2016, plaintiff was transferred to Salinas Valley State Prison
(“SVSP”) in Soledad, California. (ECF No. 19.)
A. Motion for Injunctive Relief
A temporary restraining order is an extraordinary and temporary “fix” that the court may

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issue without notice to the adverse party if, in an affidavit or verified complaint, the movant

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“clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant

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before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). The

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purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing.

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See generally, Fed. R. Civ. P. 65; see also, E.D. Cal. L. R. (“Local Rule”) 231(a). It is the

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practice of this district to construe a motion for temporary restraining order as a motion for

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preliminary injunction, particularly when, as here, the motion has been served on the adverse

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party. Local Rule 231(a).

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A preliminary injunction represents the exercise of a far reaching power not to be

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indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141,

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143 (9th Cir. 1964). In evaluating the merits of a motion for preliminary injunctive relief, the

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court considers whether the movant has shown that “he is likely to succeed on the merits, that he

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is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources

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Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (quoting Winter). The propriety of a request for injunctive relief hinges on a significant

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threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v.

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Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). A preliminary injunction is appropriate when a

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plaintiff demonstrates . . .“serious questions going to the merits and a hardship balance [ ] tips

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sharply toward the plaintiff, . . . assuming the other two elements of the Winter test are also met.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). An injunction
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against individuals who are not parties to the action is strongly disfavored. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100 (1969).

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

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

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court finds requires preliminary relief, and be the least intrusive means necessary to correct the

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harm.” 18 U.S.C. § 3626(a)(2).
First, the instant action is proceeding on plaintiff’s Eighth Amendment claims against Dr.

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Hamkar. Thus, the allegations contained in the instant motion, against different individuals based

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on unrelated claims, will not be given a hearing on the merits at trial. Second, no defendants are

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located at SVSP, where plaintiff is currently housed. Thus, the pending motion seeks injunctive

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relief against individuals who are not named as defendants. This court is unable to issue an order

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against individuals who are not parties to a suit pending before it. See Zenith, 395 U.S. at 112.

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Third, it is well established that the transfer of an inmate to another prison while his claims are

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pending generally will moot any claims for injunctive relief. See Dilley v. Gunn, 64 F.3d 1365,

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1368-69 (9th Cir. 1995); Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 1991) (a

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prisoner’s claims for injunctive relief generally become moot upon transfer.).
For all of these reasons, the undersigned finds that plaintiff’s request for injunctive relief

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should be denied.

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B. Amended Complaint

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Once an answer has been filed, a party may amend a pleading only by leave of court or by

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written consent of the adverse party. See Fed. R. Civ. P. 15(a)(2). On November 18, 2015, Dr.

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Hamkar filed an answer. Plaintiff did not file a motion to amend or a stipulation to amend the

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complaint signed by all parties. Plaintiff’s amended complaint is therefore stricken, and this

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action will proceed on the original complaint against Dr. Hamkar. If plaintiff wishes to pursue

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claims against the defendants named in his proposed amended complaint, he must file a new civil

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rights action to pursue relief based on his new allegations that are unrelated to the underlying

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Eighth Amendment claims.

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2. Motion for Appointment of Counsel

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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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3. Request to Extend Discovery Deadline

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Defendant seeks modification of the discovery deadline. Defendant noticed plaintiff’s

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deposition for April 22, 2016; however, on April 19, 2016, defendant received plaintiff’s change

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of address reflecting his transfer to Salinas Valley State Prison in Soledad, California, as of April

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5, 2016. Because discovery closes on May 1, 2016, defendant will not have sufficient time to re-

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notice plaintiff’s deposition at his new location.

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“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting
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Johnson, 975 F.2d at 607).

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Because defense counsel is required to re-notice plaintiff’s deposition at his new location,

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defendant’s request to extend the discovery deadline is granted. Discovery is extended from May

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1, 2016, to July 1, 2016. In light of this extension, the pretrial motions deadline is extended from

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July 22, 2016, to September 23, 2016. In all other respects the December 8, 2015 discovery and

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scheduling order remains in effect.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint (ECF No. 17) is stricken;

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 16) is denied without

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prejudice;

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3. Defendants’ request to extend the discovery deadline (ECF No. 20) is granted;

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4. The discovery deadline is continued to July 1, 2016, and the pretrial motions deadline

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is continued to September 23, 2016; and
IT IS RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No. 17) be

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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: April 28, 2016

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