Fordley v. Lizarraga, et al.

Filing 58

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/13/2018 ORDERING plaintiff's 43 motion for extension of time, construed as a motion for indefinite stay, is DENIED without prejudice; plaintiff's [ 49], 50 discovery motions are DENIED; the Clerk shall serve a copy of this order on plaintiff at MCSP in addition to his address of record. IT IS FURTHER RECOMMENDED that plaintiff's 43 motion for a temporary restraining order be denied without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN FREDERICK FORDLEY,

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Plaintiff,

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No. 2:16-cv-1387-JAM-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

JOE LIZARRAGA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel this action brought pursuant to 42

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U.S.C. § 1983. He has filed a motion requesting an extension of time and a temporary restraining

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order. ECF No. 43. He has also filed two discovery requests with the court. ECF Nos. 49, 50.
I.

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Background
Plaintiff, who is incarcerated at R.J Donovan Correctional Facility, filed this action on

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August 22, 2016, alleging Eighth Amendment claims against defendant correctional officers at

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Mule Creek State Prison (“MCSP”). ECF No. 1. He seeks money damages and an order that he

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be transferred out of MCSP, among other injunctive relief. Id. at 15-16.
The court issued a discovery and scheduling order on October 11, 2017. ECF No. 38.

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That order required that all discovery requests made under Federal Rules of Civil Procedure 31,

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33, 34, and 36 be made by December 15, 2017. Id.

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On November 7, 2017, defendants filed a motion for summary judgment on the basis of

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failure to exhaust administrative remedies. ECF No. 42. Plaintiff responded with a motion for

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extension of time and temporary restraining order, which defendants have responded to pursuant

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to the court’ request. ECF Nos. 44, 52. Plaintiff filed an opposition to the motion for summary

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judgment on December 14, 2017. ECF No. 45. Defendants replied on December 20, 2017. ECF

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No. 47.

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II.

The Motion for Extension of Time
Plaintiff states that he is not mentally stable and has recently made a number of suicide

attempts. ECF No. 43 at 1-3. He appends a document indicating that he was evaluated for

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suicide risk five times between August 17, 2017 and September 7, 2017 and received treatment at

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a Mental Health Crisis Bed at Pelican Bay State Prison from August 31, 2017 through September

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6, 2017. Id. at 5. He says that defendants, correctional staff at MCSP, constantly harass him,

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don’t feed him, encourage him to cut himself, and otherwise retaliate against him because of his

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lawsuits against him. Id. at 1-2. He claims he is not mentally stable, can do nothing in his current

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mental state, and requires an indefinite extension of time in this case and Case No. 2:16-cv-

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01985-MCE-EFB until he regains mental stability. Id. at 2. This request is, in essence, for an

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indefinite stay of the two cases.

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On December 27, 2017, defense counsel filed a responsive declaration. ECF No. 52. He

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avers that he spoke to Supervising Psychiatrist Andres regarding plaintiff’s claims of repeated

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suicide attempts while housed at MCSP. Id. at 2. Andres told defense counsel that, “after a

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review of Plaintiff’s mental health records, she could determine that Plaintiff has repeatedly

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engaged in self-harming behavior in an attempt to manipulate his housing assignment. Plaintiff

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has also repeatedly stated that he is not attempting to kill himself, but that he wants to force

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CDCR to transfer him away from MCSP.” Id.

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Plaintiff has, in fact, been transferred to R.J. Donovan Correctional Facility. Id. He will

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be transferred temporarily to MCSP’s administrative segregation unit in February 2018, however,

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so that he can appear in court in connection with a case pending in Amador County Superior

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Court. Id.
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Defense counsel also informs the court that plaintiff engaged in a hunger strike at the end
of November and beginning of December 2017, missing at least eight meals. Id. at 2, 4-7.
Since filing the motion for stay, plaintiff has filed his opposition to defendants’ motion for
summary judgment and four other filings. ECF Nos. 45, 46, 49-51.
“[T]he power to stay proceedings is incidental to the power inherent in every court to

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control the disposition of the causes on its docket[.]” Landis v. N. Am. Co., 299 U.S. 248, 254

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(1936). In the Ninth Circuit, courts weigh the competing interests affected by the proposed stay

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to determine whether a motion to stay should be granted. CMAX, Inc. v. Hall, 300 F.2d 265, 268

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(9th Cir. 1962). These competing interests include: (1) possible damage that may result from the

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stay, (2) hardship or inequity that may be caused by forcing the moving party to go forward, (3)

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whether the stay would disrupt the orderly course of justice by complicating issues; and (4)

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whether any questions of law would result from the granting of the stay. Id. A district court’s

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decision on a motion to stay is reviewed under an abuse of discretion standard that is “somewhat

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less deferential” than in other contexts. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir.

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2005). The court abuses its discretion if it bases its ruling on an erroneous view of the law or a

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clearly erroneous view of the evidence. Id.

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Defendants have not filed a formal opposition to plaintiff’s motion, so it is not clear what

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damage may result to them from the granting of the stay, other than the usual costs that attend

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delaying the resolution of a case (loss of witness memory or access to witnesses, for example).

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Plaintiff claims that moving the case forward will harm him because he lacks the mental stability

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to proceed, but defense counsel has submitted evidence that indicates that plaintiff’s self-harming

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behaviors are a manipulative tactic to gain a favorable transfer rather than the result of true

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mental instability. And plaintiff’s claims that defendants harass him constantly are, for the most

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part, mooted by plaintiff’s transfer to R.J. Donovan.

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In addition, plaintiff’s multiple filings since his request for a stay indicate that he has

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some ability to litigate in his current mental state. Importantly, the case currently requires little

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from plaintiff – defendants’ motion for summary judgment concerns a single issue (exhaustion)

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and has been fully briefed. The only pending deadline in the case is the discovery motions
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deadline, and plaintiff’s numerous discovery-related motions in this case and Case No. 2:16-cv-

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1985 indicate that he knows what information he seeks from defendants (if not the proper

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procedure for obtaining it). Absent more concrete evidence concerning plaintiff’s mental state,

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the court cannot conclude that plaintiff is currently incapacitated to such an extent that he cannot

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pursue this action.

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Because the evidence before the court regarding plaintiff’s mental stability is in conflict

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and because the case does not currently demand more than plaintiff is apparently able to handle,

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the court will decline to indefinitely stay the proceedings at this time.

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III.

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The Motion for Temporary Restraining Order
Plaintiff asks this court for an order directing prison officials to transfer him from MCSP.

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As noted above, plaintiff is not currently housed at MCSP but is sometimes housed in the

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administrative segregation unit there when necessary for an appearance in a local court. Plaintiff

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alleges that unidentified staff at MCSP harass him, don’t feed him, and encourage him to cut

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himself. ECF No. 43 at 1. The attached inmate appeal forms indicate that plaintiff accuses

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officers McTaggert, Martinez, Vann, and Lamb of encouraging him to cut himself. Id. at 22. He

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claims that officers Lamb, Peska, Pierce, and Vaden have told him to cut and kill himself. Id. at

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25. He further claims that staff have denied him office supplies and that Officer Pierce made

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inappropriate sexual remarks to him. Id. at 22, 26. These officers are not defendants in the

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instant action.

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A temporary restraining order may be issued upon a showing “that immediate and

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

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

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

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

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

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

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

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

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423, 439 (1974).

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In order to be entitled to preliminary injunctive relief, a party must demonstrate “that he is

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

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

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public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v.

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Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). Plaintiff’s motion does not meet this

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standard. It addresses conduct that is not a subject of this action, and therefore fails to

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demonstrate either a likelihood of success on the merits or a serious question on the merits.

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Generally, such allegations must be pursued through the prison administrative process and then

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litigated in a separate action. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002)

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(per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding

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that claims must be exhausted prior to the filing of the original or supplemental complaint); Jones

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v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15, 2011 WL

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533755 (E.D. Cal. Feb. 11, 2011).

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

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complaint under The All Writs Act. That Act gives federal courts the authority to issue “all writs

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necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and

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principles of law.” 28 U.S.C. 1651(a). The United States Supreme Court has authorized the use

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of the All Writs Act in appropriate circumstances against persons who, “though not parties to the

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original action or engaged in wrongdoing, are in a position to frustrate the implementation of a

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court order or the proper administration of justice.” United States v. N.Y. Tel. Co., 434 U.S. 159

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(1977). To obtain an order under the All Writs Act, the requested order must be “necessary.”

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This language requires that the relief requested is not available through some alternative means.

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

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Plaintiff has not shown that he cannot obtain relief from the alleged conduct of prison staff

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at MCSP through the administrative appeals process and, if necessary, by challenging it in a

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separate lawsuit. Accordingly, a temporary restraining order is not warranted at this time. If the
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alleged conduct persists and plaintiff finds he cannot litigate this action because of it, he may

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again seek relief from the court. In that event, plaintiff should describe the conduct, identify the

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staff involved if possible, describe the steps he has taken to resolve the issue through the

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administrative process, and explain to the court why an order directing CDCR not to house him at

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MCSP is necessary for the litigation of this action.

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IV.

Plaintiff’s Discovery Motions

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Plaintiff requests defendants’ “complaint records from January 2016 thru January 2017”

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(ECF No. 49) and “the video tape from the cameras on B-Yard at Mule Creek State Prison from

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March 9th 2016” (ECF No. 50).

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Interrogatories, requests for production, requests for admission, responses and proofs of

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service thereof “shall not be filed with the clerk until there is a proceeding in which the document

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or proof of service is at issue. When required in a proceeding, only that part of the request and

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response that is in issue shall be filed.” Local Rules 250.2-250.4. Plaintiff must pursue

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information from defendants and third parties through the procedures provided in Title V of the

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Federal Rules of Civil Procedure and Federal Rule of Civil Procedure Rule 45; these requests are

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not properly addressed to the court. If the responding parties fail to produce the information

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sought by plaintiff, he may file a motion to compel production of the information. (The court

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notes that the deadline for serving discovery requests has passed. ECF No. 38. Thus, if plaintiff

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has failed to seek discovery prior to that deadline (December 15, 2017), he must seek an

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extension of the deadline to pursue discovery now.).

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V.

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Order and Recommendation
In accordance with the above, it is HEREBY ORDERED that:

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1.

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Plaintiff’s December 4, 2017 motion for an extension of time (ECF No. 43), construed as
a motion for indefinite stay, is DENIED without prejudice.

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2. Plaintiff’s December 21, 2017 discovery motions (ECF Nos. 49 and 50) are DENIED.

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3. The Clerk of Court is directed to serve a copy of this order on plaintiff at Mule Creek

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State Prison, P.O. Box 409099, Ione, CA, 95640 in addition to his address of record.
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Further, it is RECOMMENDED that plaintiff’s December 4, 2017 motion for a temporary
restraining order (ECF No. 43) be denied without prejudice.

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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.” Failure to file objections

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

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

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DATED: February 13, 2018.

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