Harris v. Fernan et al

Filing 79

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/07/19 RECOMMENDING that plaintiff's motion for injunctive relief 78 be denied. Motion for Injunctive Relief 78 referred to Judge Troy L. Nunley. 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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WAYDE HOLLIS HARRIS,

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No. 2:17-cv-0680 TLN KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

S. KERNAN, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on

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plaintiff’s Eighth Amendment medical claims against defendant Dr. Kuersten. On November 1,

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2019, plaintiff filed a motion for emergency court order. Plaintiff seeks an order prohibiting his

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transfer from California State Prison, Solano (“CSP-Solano”), because such transfer would result

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in plaintiff’s temporary loss of access to his legal materials, and, if transferred to a Level II

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facility, he might be required to store his excess legal materials outside his cell, limiting his

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access thereto. In addition, due to his medical condition, if plaintiff is moved to a dorm, he would

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not have immediate access to a toilet, and such housing would impede his ability to litigate his

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cases. Plaintiff states there are many Level II inmates at CSP-Solano, but due to plaintiff’s

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situation, he does not think he will be granted an override to remain at CSP-Solano. The court

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construes plaintiff’s request as a motion for injunctive relief restraining defendants from

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transferring plaintiff away from CSP-Solano.

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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

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

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Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). “Speculative injury

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does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.”

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Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citing Goldie’s

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Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984)). “[A] plaintiff must

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

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(emphasis in original); Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1251

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(9th Cir. 2013) (“Those seeking injunctive relief must proffer evidence sufficient to establish a

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likelihood of irreparable harm.”).

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Here, plaintiff claims that he is due for an annual review during which his points will drop

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to a level enabling prison officials to transfer plaintiff to a Level II facility and anticipates that he

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will be denied a request to remain at CSP-Solano. Plaintiff’s allegations of a potential transfer are

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too speculative to constitute imminent or irreparable injury. See Goldie’s Bookstore, Inc. v.

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Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (“Speculative injury does not

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constitute irreparable injury.”) Moreover, plaintiff is not entitled to dictate his housing

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assignments. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S.

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215, 225 (1976); Montayne v. Haymes, 427 U.S. 236, 242 (1976) (It is well settled that prisoners

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have no constitutional right to placement in any particular prison, to any particular security

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classification, or to any particular housing assignment.). In addition, it is improper for the court

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to second guess the decisions of prison officials regarding the day-to-day operation of prisons.

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See Whitley v. Albers, 475 U.S. 312, 322 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547

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(1979) (Prison officials are entitled to “‘wide-ranging deference in the adoption and execution of

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policies and practices that in their judgment are needed to preserve internal order and discipline

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and to maintain institutional security.’”). If the classification committee determines that

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plaintiff’s points have dropped and he should be transferred, plaintiff may raise any medical

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concerns about such transfer at his annual review hearing. Moreover, if plaintiff is transferred
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and temporarily deprived of access to his legal materials, he may file requests for extensions of

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time to comply with any pending court deadline.

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

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wishes the order to issue. The instant action proceeds solely as to Dr. Kuersten, a medical doctor

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with no authority over plaintiff’s classification or housing. Zenith Radio Corp. v. Hazeltine

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Research, Inc., 395 U.S. 100, 112 (1969).
For all of the above reasons, the undersigned recommends that plaintiff’s motion be

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denied.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive
relief (ECF No. 78) 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 filed and served 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: November 7, 2019

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/harr0680.pi.tf

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