Crane v. Rodriguez et al

Filing 22

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/22/15 ORDERING that plaintiffs request for extension of time (ECF No. 20 ) is denied without prejudice; and it is RECOMMENDED that plaintiffs request for injunctive relief (ECF No. 21 ) be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 30 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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RICHARD JOSEPH CRANE,

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No. 2:15-cv-0208 TLN KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

RODRIGUEZ, et al.,

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Defendants.

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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. Plaintiff’s

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civil rights action, filed pursuant to 42 U.S.C. § 1983, is proceeding on the second amended

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complaint against defendants Davey, Rodriguez, Robinette, Weeks, Barton, Probst, and Madrigal,

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correctional officers, and two parole commissioners, all located at High Desert State Prison

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(“HDSP”). Plaintiff alleges that these defendants retaliated against him for exercising his rights

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to access the courts and practice his religion, and failed to protect plaintiff, based on incidents that

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occurred at HDSP between February 12, 2009, and March 8, 2013. On September 11, 2015,

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plaintiff filed a notice of change of address indicating that he was transferred to the California

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State Prison in Lancaster, California (“LAC”). (ECF No. 19.) Pending before the court is

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plaintiff’s request for injunctive relief filed September 14, 2015. As set forth below, plaintiff’s

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motion should be denied.
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II. Standards

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The party requesting preliminary injunctive relief must show that “he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d

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1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).

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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious

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questions” version of the sliding scale test for preliminary injunctions remains viable after

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Winter).

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The principal purpose of preliminary injunctive relief is to preserve the court’s power to

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render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to

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demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary

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injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports

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Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation

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omitted). Implicit in this required showing is that the relief awarded is only temporary and there

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will be a full hearing on the merits of the claims raised in the injunction when the action is

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brought to trial. In cases brought by prisoners involving conditions of confinement, any

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

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

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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III. Plaintiff’s Motion

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In his motion for injunctive relief, signed August 30, 2015, plaintiff alleges the following:

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Prison staff at RJD are “deliberately depriving him of his Eighth Amendment rights to

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protection from violence, and are subjecting him to cruel and unusual punishment because of his

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litigation in violation of the First Amendment.” (ECF No. 21 at 7.) Officer Cruz refused to

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deliver plaintiff to an attorney visit on March 27, 2015. (ECF No. 21 at 4.) Officer Mendoza

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wrote a false 128 (counseling chrono) against plaintiff claiming he was out of bounds, which he

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claims will be used by the Parole Board to punish him. (ECF No. 21 at 9.) From March 27,

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2015, to August of 2015, various correctional officers at RJD refused to provide plaintiff with

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lower bunk cell housing. In July of 2015, plaintiff was placed on loss of privilege (“LOP”) status

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without a CDCR 115 (rules violation report or “RVR”) or a hearing. Plaintiff claims that

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defendants “and agents of CDCR [California Department of Corrections and Rehabilitation] are

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clearly acting in a conspiracy to punish plaintiff without cause for his litigation against CDCR

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Officials.” (ECF No. 21 at 9.)

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Plaintiff supports his request for injunctive relief by including incidents that occurred

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prior to plaintiff’s housing at RJD, such as his claims that while housed at Salinas Valley State

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Prison (“SVSP”) in 2008, Officers Ambriz and Yee wrote and allegedly backdated a false RVR

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for conduct conducive to violence (threats against staff) to support his placement in ad seg and in

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retaliation for plaintiff suing them. (ECF No. 21 at 6, 43, 45-46.) Plaintiff also references claims

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from the instant action: the parole commissioners relied on the allegedly false August 30, 2003

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“Smoking in a State Building” CDC 128A (counseling chrono) (ECF No. 21 at 11), and

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repeatedly referred to an allegedly false 2010 RVR for fighting1 and a 2010 RVR for misuse of

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state property (ECF No. 21 at 80), and the 2008 allegedly false RVR, in denying plaintiff parole

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(ECF No. 21 at 6, 11-12). Plaintiff contends that the “current falsification of the LOP and 128A

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for allegedly being out-of-bounds proves an ongoing pattern of retaliation with false allegations

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by CDCR guards.” (ECF No. 21 at 12, 32.)

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Plaintiff did not provide a copy of the Board’s transcript in which they allegedly referred to the
2010 RVR for fighting, and did not provide a copy of such RVR.
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IV. Discussion
No defendants are located at RJD, where plaintiff was housed at the time of the

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underlying allegations. Thus, the pending motion seeks injunctive relief against individuals who

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

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not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100, 112 (1969). If plaintiff wishes to challenge the actions of prison staff at RJD, he must

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file an action in the Southern District of California.

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In addition, plaintiff has now been transferred to LAC, so any threat of imminent physical
harm related to plaintiff’s inappropriate cell housing at RJD or imminent harm related to RJD

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prison staff’s alleged retaliation is now moot. See Preiser v. Newkirk, 422 U.S. 395 (1975)

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(inmate’s request for declaratory judgment rendered moot by his transfer to another prison).

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When an inmate is transferred to another prison and there is no reasonable expectation or

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demonstrated probability that he will again be subjected to the conditions from which he seeks

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injunctive relief, his claim for injunctive relief should be dismissed as moot. See Dilley v. Gunn,

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64 F.3d 1365, 1368-69 (9th Cir. 1995). The possibility that an inmate might be transferred back

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to the prison where the injury occurred is too speculative to overcome mootness. Id.; see also

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Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985).

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Plaintiff’s vague claim that CDCR prison staff are engaged in a pattern and practice of

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retaliating against plaintiff by issuing false charges, 128As, and RVRs, without more, is

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insufficient to demonstrate that he would be subject to such alleged conditions at LAC. Plaintiff

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attempts to connect the LOP and 128A issued in 2015 at RJD with a 128A that issued in 2003 at

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Pleasant Valley State Prison (“PVSP”), and with allegedly false RVRs that issued in 2008 at

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SVSP for conduct conducive to violence, and in 2010 for misuse of state property at HDSP.

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These various charges issued over a wide span of years and thus are remote in time as well as

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geography, involve different prison staff, and are unrelated in subject matter. Plaintiff sets forth

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no factual allegations demonstrating any connection between the prison staff at RJD and those at

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PVSP, SVSP or HDSP. Rather, plaintiff simply alleges that there is a “conspiracy” without

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sufficient factual support. Plaintiff’s conclusory claims that all of these RVRs and the 128A were
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false and issued in retaliation for plaintiff exercising his First Amendment rights, standing alone,

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fail to demonstrate a pattern or practice. The undersigned finds plaintiff’s alleged conspiracy

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claim too attenuated and vague to support an injunctive relief claim.2 If plaintiff challenges the

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issuance of the LOP or 128A at RJD, he must file an action in the Southern District of California

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after exhausting his administrative remedies.
For all of these reasons, plaintiff’s motion for injunctive relief should be denied.

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V. Request for Extension of Time

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On September 1, 2015, plaintiff signed a motion for sixty day extension of time to receive
his property, and to secure his change of address and legal property in light of his impending

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transfer to LAC. (ECF No. 20 at 1.) However, plaintiff signed a change of address on September

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3, 2015 (ECF No. 19). At the time of plaintiff’s filing, there were no pending court deadlines that

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required a response. Thus, plaintiff’s motion for extension of time is denied without prejudice.

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In an abundance of caution, plaintiff will be granted thirty days in which to file objections to

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these findings and recommendations.

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VI. Conclusion
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for extension of time

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(ECF No. 20) is denied without prejudice; and
IT IS RECOMMENDED that plaintiff’s request for injunctive relief (ECF No. 21) 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 thirty days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be

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filed and served within fourteen days after service of the objections. The parties are advised that

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Plaintiff’s allegations concerning the March 27, 2015 attorney visit are unavailing because he
concedes that his attorney cancelled the appointment without plaintiff’s knowledge. (ECF No. 21
at 3:13-15.) Prison staff cannot be held liable for failing to deliver plaintiff to meet with an
attorney who was not there.
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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 22, 2015

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/cran0208.pi

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