Steward v. Thumser et al

Filing 94

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/31/19 ORDERING the Clerk of the Court shall return plaintiffs original motion and exhibits 92 to plaintiff at his address of record. Also, RECOMMENDING that plaintiffs motion for injunctive relief 92 be denied without prejudice. Motion 92 referred to Judge Troy L. Nunley. 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

DONNY STEWARD,

12
13
14
15

No. 2:16-cv-1232 TLN KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

G. THUMSER, et al.,
Defendants.

16
17

Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

18

42 U.S.C. § 1983, and is proceeding in forma pauperis. This action proceeds on plaintiff’s second

19

amended complaint alleging that defendants Olson, Harrison, Pompey, Tapiz, and Jones, all

20

employed at the California Medical Facility (“CMF”) in Vacaville, California, failed to protect

21

plaintiff and used excessive force, in violation of the Eighth Amendment. (ECF No. 15.) All

22

defendants have filed an answer. On January 25, 2019, plaintiff filed a motion requesting

23

emergency injunctive relief. (ECF No. 92.) For the reasons set forth below, the undersigned

24

recommends that the motion for injunctive relief be denied.

25

I. Motion for Injunctive Relief

26

A. Legal Standards

27

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

28

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
1

1

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

2

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

3

1109, 1127 (9th Cir. 2009) (quoting Winter). The Ninth Circuit has held that, even if the moving

4

party cannot show a likelihood of success on the merits, injunctive relief may issue if “serious

5

questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can

6

support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a

7

likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the

8

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation omitted).

9

Under either formulation of the principles, preliminary injunctive relief should be denied if the

10

probability of success on the merits is low. See Johnson v. California State Bd. of Accountancy,

11

72 F.3d 1427, 1430 (9th Cir. 1995) (“‘[E]ven if the balance of hardships tips decidedly in favor of

12

the moving party, it must be shown as an irreducible minimum that there is a fair chance of

13

success on the merits.’” (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670, 675 (9th Cir.

14

1984)).

15

In addition, as a general rule this court is unable to issue an order against individuals who

16

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

17

U.S. 100 (1969). A federal district court may issue emergency injunctive relief only if it has

18

personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy

19

Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a

20

party officially, and is required to take action in that capacity, only upon service of summons or

21

other authority-asserting measure stating the time within which the party served must appear to

22

defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g.,

23

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d

24

719, 727-28 (9th Cir. 1983). Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds

25

only “the parties to the action,” their “officers, agents, servants, employees, and attorneys,” and

26

“other persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

27

////

28

////

2

1

B. Plaintiff’s Motion

2

Plaintiff is now housed at Kern Valley State Prison, in Delano, California (“KVSP”). In

3

the instant motion, plaintiff contends he needs his cane, orthotic boots, mobility vest, and his

4

glasses “yesterday!” (ECF No. 92 at 3.) Plaintiff claims he was finally diagnosed with glaucoma

5

by an outside eye doctor, Dr. Tesluk. On December 27 or 28 of 2018, plaintiff saw his primary

6

care doctor, Dr. Rohrdanz, who said he would order plaintiff’s cane, but when the therapist

7

looked on the computer on January 15, 2019, there was no order for a cane, just for orthotic

8

boots, and no order for a further eye appointment for plaintiff to get his eyeglasses replaced.

9

Also, plaintiff claims that LVN Blankenship is responsible for failing to make out orders for Dr.

10

Rohrdanz’s approval. (ECF No. 92 at 4.) Further, plaintiff claims the medical officers at KVSP

11

are intentionally violating plaintiff’s Eighth Amendment rights. Plaintiff also alleges he is being

12

wrongfully charged co-payments for medical care. (Id. at 5-7.) As relief, plaintiff asks the court

13

to investigate the delay in getting plaintiff’s glasses, cane, and orthotic boots. (ECF No. 92 at 5.)

14

Plaintiff alleges that he has been without his cane, mobility vest, orthotic boots, and bifocal

15

glasses since January 1, 2018. (ECF No. 92 at 2.)

16

C. Discussion

17

Initially, the undersigned notes that plaintiff withdrew a prior motion for injunctive relief,

18

and thanked the court for informing plaintiff concerning Rule 65(b)(1)(A) of the Federal Rules of

19

Civil Procedure, as well as Local Rule 231(a). (ECF No. 46 at 4.) In the now-vacated findings

20

and recommendations addressing plaintiff’s prior motion for injunctive relief, plaintiff was

21

advised of all the legal standards governing motions for preliminary injunctive relief set forth

22

above. (ECF No. 45 at 2-3.)

23

In the instant motion, plaintiff raises no allegations concerning the named defendants

24

herein, and his new medical claims are not related to the Eighth Amendment excessive force

25

claims pending in this action. Plaintiff was housed at CMF at the time he filed this action, and

26

proceeds based on incidents that took place at CMF. The medical claims raised in plaintiff’s

27

instant motion for injunctive relief took place at KVSP, and involve individuals who are not

28

named as defendants in this action. Thus, plaintiff’s claims for injunctive relief will not be heard
3

1

on the merits in this action, and plaintiff cannot demonstrate a likely success on the merits of his

2

claims for injunctive relief because such claims are wholly unrelated to what took place at CMF

3

and involved defendants Olson, Harrison, Pompey, Tapiz, and Jones. See Zenith Radio Corp.,

4

395 U.S. at 112; Zepeda, 753 F.2d at 727 (“A federal court may issue an injunction if it has

5

personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not

6

attempt to determine the rights of persons not before the court.”). This court does not have

7

jurisdiction to order non-parties to provide plaintiff with the items he requests. Plaintiff’s request

8

for injunctive relief should be denied without prejudice.1

9

II. Return of Original

10

In his motion, plaintiff notes that he is on lockdown and was unable to retain a copy of his

11

motion and exhibits. Because plaintiff may be able to use his original to pursue an action in the

12

Fresno Division of this court, and his motion has been scanned into CM/ECF, the Clerk of the

13

Court is directed to return plaintiff’s original motion (ECF No. 92), filed January 25, 2019, to

14

plaintiff.

15

Conclusion

16

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall return

17

plaintiff’s original motion and exhibits (ECF No. 92) to plaintiff at his address of record; and

18

IT IS RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No. 92) be

19

denied without prejudice.

20

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

21

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

22

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

23

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

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

25

1

26
27
28

If plaintiff wishes to seek relief on his medical Eighth Amendment claims, he must first exhaust
his administrative remedies, and then may file a civil rights complaint in the Fresno Division of
this court. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“When a prison inmate seeks
injunctive relief, a court need not ignore the inmate’s failure to take advantage of adequate prison
procedures, and an inmate who needlessly bypasses such procedures may properly be compelled
to pursue them.”).
4

1

objections shall be filed and served within fourteen days after service of the objections. The

2

parties are advised that failure to file objections within the specified time may waive the right to

3

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

4

Dated: January 31, 2019

5
6
7
8
9

/stew1232.pi2

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5