Hardney v. Warren et al

Filing 66

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/24/19 RECOMMENDING that the 12/06/18 motion for a temporary restraining order 63 be denied. Motion for Temporary Restraining Order 63 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN HARDNEY,

12

Plaintiff,

13
14

No. 2:16-cv-0172-KJM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

R. WARREN, et al.,

15

Defendants.

16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

17
18

U.S.C. § 1983. The action has been stayed pending the resolution of a state criminal proceeding

19

against plaintiff. ECF No. 50. Nevertheless, plaintiff has filed a second motion requesting a

20

preliminary injunction.1 ECF No. 63. Defendants oppose the motion. ECF No. 65. For the

21

reasons that follow, the motion must be denied.

22

I.

This action proceeds on plaintiff’s amended complaint (ECF No. 10) and the court’s

23
24

Background

screening order (ECF No. 16), which allowed the following claims to proceed:
1. That defendant correctional officer Pogue subjected plaintiff to excessive force on

25

October 10, 2014 in the Mule Creek State Prison (“MCSP”) medical clinic while

26
27
28

1

His earlier motion was denied on April 23, 2018, prior to the stay of this case. ECF Nos.

44, 48.
1

1

defendants Hickman and Almodovar, also correctional officers, looked on and failed

2

to intervene;

3

2. That defendant licensed vocational nurse Kumeh also witnessed Pogue’s excessive

4

force against plaintiff, but ignored plaintiff’s bleeding face and cries for help and

5

falsely documented that plaintiff sustained no injuries in the altercation; and

6

3. That defendant correctional officer Brazil subjected plaintiff to excessive force after

7

escorting plaintiff to the holding cage in administrative segregation following the

8

incident with Pogue, Hickman, Almodovar, and Kumeh.

9
10

The Motion for Preliminary Injunction2

II.

In his motion for preliminary injunction, plaintiff asserts a host of alleged transgressions

11

against him by various unnamed correctional staff that duplicate the allegations made in the

12

previous motion for preliminary injunction. Again, plaintiff does not allege any misconduct by

13

defendants. Plaintiff again asks that the court issue an order compelling prison officials to

14

transfer plaintiff to California Medical Facility in Vacaville. ECF No. 63 at 15. He also asks that

15

the court order CDCR officials to expunge any disciplinary reports against him that were

16

“arbitrarily decided, echoing his earlier request that the court order CDCR to remove from his

17

prison file a rules violation report charging him with sexual misconduct. Id. He also complains

18

about being denied certain items of property when transferred and having inadequate law library

19

access. Id. at 8, 16.

20

The court may issue preliminary injunctive relief upon a showing “that immediate and

21

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

22

in opposition.” Fed. R. Civ. P. 65(b)(1)(A); Haw. County Green Party v. Clinton, 980 F. Supp.

23

1160, 1164 (D. Haw. 1997)(“The standards for granting a temporary restraining order and a

24

preliminary injunction are identical.”); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240

25

F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is

26

“substantially identical” to an analysis of a temporary restraining order). The purpose of the

27
28

2

Although this case is currently stayed, the court has nonetheless evaluated the merits of
plaintiff’s motion.
2

1

order is to preserve the status quo and to prevent irreparable harm “just so long as is necessary to

2

hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S.

3

423, 439 (1974).

4

To be entitled to preliminary injunctive relief, a party must demonstrate “that he is likely

5

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

6

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

7

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def.

8

Council, Inc., 555 U.S. 7 (2008)). Plaintiff’s motion does not meet this standard. It addresses

9

conduct that is not a subject of this action, and therefore fails to demonstrate either a likelihood of

10

success on the merits or a serious question on the merits. Generally, such allegations must be

11

pursued through the prison administrative process and then litigated in a separate action. See

12

McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v.

13

Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be

14

exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV

15

S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15, 2011 WL 533755 (E.D. Cal.

16

Feb. 11, 2011).

17

Although the court does have some authority to intervene regarding conduct unrelated to

18

the complaint under The All Writs Act, there are no circumstances warranting that action here.

19

That Act gives federal courts the authority to issue “all writs necessary or appropriate in aid of

20

their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.

21

1651(a). The United States Supreme Court has authorized the use of the All Writs Act in

22

appropriate circumstances against persons who, “though not parties to the original action or

23

engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the

24

proper administration of justice.” United States v. N.Y. Tel. Co., 434 U.S. 159 (1977). To obtain

25

an order under the All Writs Act, the requested order must be “necessary.” This language

26

requires that the relief requested is not available through some alternative means. Clinton v.

27

Goldsmith, 526 U.S. 529 (1999).

28

/////
3

1

Here, plaintiff has not shown that the conduct he complains of has frustrated his ability to

2

litigate this action or is otherwise interfering with this case. Nor has plaintiff shown that he

3

cannot challenge the alleged misconduct of nonparties through the prison grievance process and,

4

if necessary, separate civil rights lawsuits. Plaintiff’s complaint about law library access is

5

premature, as this case is stayed and no deadlines are pending. His complaint about access to his

6

legal property is being addressed by the state court. ECF No. 63 at 13; ECF No. 64 at 4. As there

7

is no showing that the requested relief is necessary to the progress of this action, there is no basis

8

so support plaintiff’s motion under the All Writs Act either.

9
10

III.

Conclusion and Recommendation
Plaintiff has not made the showing required to obtain the order he requests. Accordingly,

11

it is hereby RECOMMENDED that his December 6, 2018 motion for a temporary restraining

12

order (ECF No. 63) be DENIED.

13

These findings and recommendations are submitted to the United States District Judge

14

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

15

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

16

objections with the court and serve a copy on all parties. Such a document should be captioned

17

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

18

within the specified time may waive the right to appeal the District Court’s order. Turner v.

19

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20

DATED: January 24, 2019.

21
22
23
24
25
26
27
28
4