Belyew v. Hornea et al

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/7/2021 RECOMMENDING plaintiff's 45 motion for temporary restraining order be denied; plaintiff's 50 motion to supplement the first amended complaint be denied; and plaintiff's 52 motion to amend the first amended complaint be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K) Modified on 6/7/2021 (Yin, K).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA MARIE BELYEW,

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Plaintiff,

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No. 2:17-cv-0508 KJM AC P

v.

FINDINGS AND RECOMMENDATIONS

KORY L. HONEA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. This matter is before the court on plaintiff’s motions for a temporary restraining

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order, ECF No. 45, to supplement the first amended complaint, ECF No. 50, and to amend the

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complaint, ECF No. 52.

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I.

Motion for Temporary Restraining Order
Plaintiff seeks an ex parte temporary restraining order while she is temporarily housed at

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the Butte County Jail, to prevent unidentified individuals at the jail from retaliating against her for

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the instant suit. ECF No. 45. She seeks to enjoin prison officials from stealing or destroying her

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property, opening her legal mail, and using other inmates to retaliate against her. Id. Plaintiff

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also requests to be single-celled and to be allowed to keep her radio in the cell. Id.

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A.

Legal Standard

A temporary restraining order is an extraordinary measure of relief that a federal court
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may impose without notice to the adverse party only if, in an affidavit or verified complaint, the

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movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the

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movant before the adverse party can be heard in opposition” and the movant “certifies in writing

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any efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P.

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65(b)(1). The standard for issuing a temporary restraining order is otherwise essentially the same

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as that for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,

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240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders

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and preliminary injunctions is “substantially identical”).

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In evaluating the merits of a motion for preliminary injunction, the court considers

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whether the movant has shown that “he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555

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U.S. 7, 20 (2008) (citations omitted). The Ninth Circuit has held that “‘serious questions going to

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the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance

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

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irreparable injury and that the injunction is in the public interest,” even if the moving party cannot

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show that he is likely to succeed on the merits. All. for the Wild Rockies v. Cottrell, 632 F.3d

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1127, 1135 (9th Cir. 2011). Under either formulation of the principles, preliminary injunctive

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relief should be denied if the probability of success on the merits is low. Johnson v. Cal. State

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

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decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is

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a fair chance of success on the merits.” (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670,

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675 (9th Cir. 1984))).

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Finally, an injunction can bind individuals who are not parties to the action only when

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they are “officers, agents, servants, employees, and attorneys” of the parties or “are in active

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concert or participation with” the parties. Fed. R. Civ. P. 65(d)(2).

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B.

Discussion

As an initial matter, plaintiff has not demonstrated that notice should not be required and
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that she will suffer irreparable injury before defendants’ opposition can be heard, nor has she

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shown that she has any likelihood of success on the merits. However, even if the court assumes

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that plaintiff is likely to succeed on the merits, her contentions of potential future injury are no

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more than speculative and are therefore insufficient to demonstrate a risk of immediate and

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irreparable injury. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)

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(“Speculative injury does not constitute irreparable injury sufficient to warrant granting a

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preliminary injunction.” (citing Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472

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(9th Cir. 1984))).

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Although plaintiff claims that unspecified prison officials will steal or destroy her

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property and use other inmates to retaliate against her, she has not presented any facts to support

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the claim that the anticipated conduct is imminent or even likely. See id. (“A plaintiff must do

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more than merely allege imminent harm sufficient to establish standing; a plaintiff must

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demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”

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(citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201

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(9th Cir. 1980))). Moreover, even though plaintiff’s motions to supplement and amend the first

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amended complaint indicate that she has since suffered some retaliation, ECF Nos. 50, 52, the

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harm is not related to the claims in the first amended complaint, see Pac. Radiation Oncology,

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LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff seeks injunctive

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relief based on claims not pled in the complaint, the court does not have the authority to issue an

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injunction.”). For these reasons, the motion must be denied.

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Additionally, the court must have jurisdiction over the individuals against whom plaintiff

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wishes the restraining order to issue. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584

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(1999) (“Personal jurisdiction, too, is an essential element of the jurisdiction of a district . . .

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court, without which the court is powerless to proceed to an adjudication.” (alteration in original)

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(citation and internal quotation omitted)); Paccar Int’l, Inc. v. Com. Bank of Kuwait, S.A.K., 757

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F.2d 1058, 1061 (9th Cir. 1985) (vacating district court’s order granting preliminary injunction

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for lack of personal jurisdiction). However, plaintiff seeks relief against unspecified prison

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officials rather than the named defendants.1 Furthermore, in her motions to supplement and

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amend the first amended complaint, plaintiff identifies several individuals, and two in particular,

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as the individuals who are retaliating against her. ECF Nos. 50, 52. To the extent it appears that

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plaintiff is seeking an injunction against these individuals, none of them are named defendants to

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this action, and there are no facts showing that these individuals are acting “in active concert or

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participation” with defendants. See Fed. R. Civ. P. 65(d)(2); Zenith Radio Corp. v. Hazeltine

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Rsch., Inc., 395 U.S. 100, 112 (1969) (“a non-party with notice cannot be held in contempt until

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shown to be in concert or participation”). Because plaintiff has not requested an injunction

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against anyone over whom the court has jurisdiction, the motion must be denied.

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II.

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Motions to Supplement and Amend the First Amended Complaint
Plaintiff has filed motions to supplement and amend the first amended complaint, in

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which she seeks to assert additional claims against new defendants based upon incidents that

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occurred after she was transferred back to Butte County Jail on February 23, 2021, for court

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proceedings. ECF Nos. 50, 52. Once the time for amending as a matter of course has passed,

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Rule 15(a)(2) permits an amended pleading “only with the opposing party's written consent or the

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court’s leave.” In considering whether to grant leave to amend, “[t]he court should freely give

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leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Under Rule 15(d), “the court may, on

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just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence,

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or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d).

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The first amended complaint proceeds against defendants Moreland and Spencer on

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claims that they subjected plaintiff to unreasonable searches, unsanitary conditions, excessive

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force, and retaliation in 2016 and 2017. See ECF Nos. 23, 26. Although plaintiff alleges that the

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retaliation she is currently facing is because of filing the instant lawsuit, there is no indication that

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either defendant was responsible for the retaliation, and the alleged violations do not arise out of

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the same events at issue in this case. Accordingly, joinder of the claims or any additional

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To the extent plaintiff’s motion can be construed to seek an injunction against Butte County Jail
or Sheriff Honea, the jail is not a defendant, and although Sheriff Honea was named as a
defendant, the claims against him were dismissed. ECF No. 31.
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defendants would not be proper, see Fed. R. Civ. P. 18(a) (plaintiff may bring “as many claims as

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it has against an opposing party”); Fed. R. Civ. P. 20(a)(2) (plaintiff may only join defendants

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where claims against them arise “out of the same transaction, occurrence, or series of transactions

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or occurrences”), and the motions to supplement and amend should be denied. If plaintiff wishes

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to pursue these new claims, she may attempt to do so in a separate action after exhausting her

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administrative remedies.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for temporary restraining order, ECF No. 45, be DENIED.

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2. Plaintiff’s motion to supplement the first amended complaint, ECF No. 50, be

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DENIED.

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3. Plaintiff’s motion to amend the first amended complaint, ECF No. 52, be 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 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.” Any response to the

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

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

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

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DATED: June 7, 2021

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