Fordley v. Lizarraga, et al.

Filing 82

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/24/18 RECOMMENDING that plaintiff's 4/20/18 motion for a temporary restraining order 65 be denied without prejudice. Motion for Temporary Restraining Order 65 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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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.

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 a temporary restraining order. ECF No. 65.
I.

Background
Plaintiff, who is currently house at California Substance Abuse Treatment Facility, filed

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this action on August 22, 2016, alleging Eighth Amendment claims against defendant correctional

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officers at Mule Creek State Prison (“MCSP”). ECF No. 1. He seeks money damages and an

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order that he be transferred out of MCSP, among other injunctive relief. Id. at 15-16.

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II.

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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and to house him elsewhere during periods when he must appear in Amador County Superior

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Court. As noted above, plaintiff is not currently permanently housed at MCSP but is sometimes

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housed there in the administrative segregation unit when necessary for a local court appearance.
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This is the second motion for temporary restraining order that plaintiff has filed. In the

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first, plaintiff alleged that both identified and unidentified staff at MCSP harassed him, refused to

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feed him, encouraged him to cut himself, denied him office supplies, and made inappropriate

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sexual remarks to him. ECF Nos. 32, 33.

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In denying the earlier motion without prejudice, the court informed plaintiff that, if he

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wished to file another motion for preliminary injunctive relief, that he should “describe the

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

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through the administrative process, and explain to the court why an order directing CDCR not to

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house him at MCSP is necessary for the litigation of this action.” ECF No. 58 at 6 (magistrate

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judge’s findings and recommendations, adopted by ECF No. 67). Like the earlier motion, the

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instant motion fails to provide that information. Plaintiff again alleges various misdeeds by

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unidentified correctional officers (who deny him paper and envelopes to write home, medical

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supplies, photocopies, and a toothbrush; harass him daily; ignore his medical complaints; and

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encourage him to cut himself). ECF No. 65. Plaintiff identifies only two correctional staffers by

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name – (1) an officer Pierce, who is not a defendant in this action but who has allegedly left a

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razor in plaintiff’s cell and told plaintiff to cut himself and (2) defendant Lizarraga, who has

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“pulled” plaintiff’s “endorsement” for R.J. Donovan to keep plaintiff at MCSP.

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In his reply, plaintiff raises new allegations against defendant Lizarraga (that he placed

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plaintiff on C Yard at MCSP to harass him because some defendants in plaintiff’s other lawsuits

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work there and plaintiff cannot access the showers) and against more unidentified MCSP staff

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(that they have ignored the injuries plaintiff sustained in two assaults). ECF No. 74.

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Neither the moving papers nor the reply brief establish any basis for granting preliminary

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injunctive relief. A temporary restraining order may be issued upon a showing “that immediate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Feb. 11, 2011).

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Nonetheless, where circumstances warrant, the court does have some authority to

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intervene regarding conduct unrelated to the complaint under The All Writs Act. That Act gives

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federal courts the authority to issue “all writs necessary or appropriate in aid of their respective

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jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 1651(a). The United

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States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances

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against persons who, “though not parties to the original action or engaged in wrongdoing, are in a

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position to frustrate the implementation of a court order or the proper administration of justice.”

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United States v. N.Y. Tel. Co., 434 U.S. 159 (1977). To obtain an order under the All Writs Act,

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the requested order must be “necessary.” This language requires that the relief requested is not

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available through some alternative means. Clinton v. Goldsmith, 526 U.S. 529 (1999). But here,

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plaintiff’s motion does not show that the order he seeks is “necessary,” as the All Writs Act
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requires. The most recent findings and recommendations were sent to plaintiff at both RJ

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Donovan and MCSP and the mail sent to MCSP was returned to the court. (See Docket Notation

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of June 18, 2018.) On July 12, 2018, plaintiff filed a Notice of Change of Address to California

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Substance Abuse Treatment Facility. It thus appears that plaintiff is no longer at MCSP. No

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party has informed the court whether plaintiff’s case in Amador County has been resolved or

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whether plaintiff may be returned to MCSP for future hearings.

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Additionally, plaintiff’s motion shows that he successfully grieved an erroneous denial of

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medical supplies. ECF No. 65 at 29-30. Defendants’ opposition to the motion includes a

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declaration from the litigation coordinator at MCSP, who directed staff to ask plaintiff if he had

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any concerns regarding his medical supplies. ECF No. 70-1 at 2 (Decl. of J. Austin, ¶ 2).

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Correctional Officer Schopf did so, and plaintiff reported that his only concern was that he would

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soon be out of “wipes.” Id. at 4. Schopf contacted the facility’s Correctional Sergeant, who

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“made sure that the medical staff in C clinic would issue [plaintiff] some more before he ran out.”

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Id.

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Plaintiff has not complied with the court’s prior instructions that he make some effort to

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identify the staff involved, inform the court of the administrative steps he has taken to resolve the

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issues, and explain why the requested injunction is necessary for plaintiff to continue to litigate

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this action. This action is a forum for resolving the claims raised in the complaint, not for

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addressing plaintiff’s many grievances about his treatment at MCSP; plaintiff may not use this

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case as a vehicle to obtain injunctive relief for injuries not alleged in the complaint. Nor has

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plaintiff made the requisite showing of necessity to obtain the requested order under the All Writs

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Act. He has not demonstrated 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. Nor has he shown that he cannot litigate this action without the requested order.

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Indeed, it appears he obtained at least some redress through the administrative appeals process

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and that he is not currently housed at MCSP in any event. Accordingly, the order plaintiff seeks

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is not warranted at this time.

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/////
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If plaintiff is returned to MCSP, the alleged conduct persists, and plaintiff finds he cannot

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litigate this action because of it, he may again seek relief from the court. In that event, plaintiff

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must again describe the conduct, identify the staff involved to the extent possible, describe the

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steps he has taken to resolve the issue through the administrative process, and explain to the court

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why an order directing CDCR not to house him at MCSP is necessary for the litigation of this

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action.

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III.

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Recommendation
Accordingly, it is RECOMMENDED that plaintiff’s April 20, 2018 motion for a

temporary restraining order (ECF No. 65) 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: August 24, 2018

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