Meador v. Brown et al
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/30/2018 ORDERING the Clerk to randomly assign a district judge to this action and RECOMMENDING plaintiff's 6 motion for preliminary injunction be denied. Assigned and referred to Judge Kimberly J. Mueller; 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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GORDON DALE MEADOR,
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Plaintiff,
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No. 2:18-cv-0696 AC P
v.
ORDER AND
SCOTT KERNAN, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983 and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on April
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27, 2018. See ECF No. 7. This proceeding was referred to this court by Local Rule 302 pursuant
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to 28 U.S.C. § 636(b)(1).
Plaintiff filed his complaint on March 27, 2018. ECF No. 1. On April 19, 2018, plaintiff
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filed a motion for a preliminary injunction. ECF No. 6. For the reasons stated herein the court
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will recommend that the motion be denied.
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I.
RELEVANT FACTS
Plaintiff requests that a preliminary injunction issue in order to: (1) prevent “Scott Kernan
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or his office” from illegally blocking plaintiff’s mail, and (2) require Scott Kernan “to protect
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[him] from the fall out [sic] of the initial order to have him killed.” ECF No. 6 at 1-3 (brackets
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added).
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In sum, plaintiff requests that the court “issue an injunction to protect [his] life, [sic] and rights
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[sic] to access to the courts.” ECF No. 6 at 5 (brackets added).
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II.
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APPLICABLE LAW
When evaluating the merits of a motion for preliminary injunctive relief, the court
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considers whether the movant has shown that “he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities
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tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources
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Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
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2009) (quoting Winter). The propriety of a request for injunctive relief hinges on a significant
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threat of irreparable injury that must be imminent in nature. Caribbean Marine Servs. Co. v.
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Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); see also Alliance for the Wild Rockies v. Cottrell,
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632 F.3d 1127, 1131-32 (9th Cir. 2011).
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A district court may not issue preliminary injunctive relief without primary jurisdiction
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over the underlying cause of action. Sires v. State of Washington, 314 F.2d 883, 884 (9th Cir.
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1963). Additionally, an injunction against individuals who are not parties to the action is strongly
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disfavored. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).
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III.
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ANALYSIS
Neither Scott Kernan nor anyone else has been formally named as a party to this action.
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See Zenith Radio Corp., 395 U.S. at 112. Moreover, plaintiff fails to demonstrate either that he is
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likely to succeed on the merits or that he is likely to suffer irreparable harm in the absence of
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preliminary relief in these situations. See Winter, 555 U.S. at 20; Stormans, Inc., 586 F.3d at
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1127. Thus, as detailed below, injunctive relief cannot be granted.
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A.
Denial of Access to Legal Mail
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In response to plaintiff’s allegations that his legal mail was neither being sent nor received (see
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ECF No. 6 at 1-2), the court directed the Office of the Attorney General (“OAG”) to contact the
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appropriate officials at California State Prison-Corcoran (“CSP-Corcoran”) to assess and ensure
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plaintiff’s health and safety as well as to ensure that plaintiff had received his legal mail since
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March of 2018. See ECF No. 7 (order filed April 27, 2018). On May 7, 2018, the OAG filed a
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response stating (1) that plaintiff was, in fact, receiving his legal mail, and (2) that his efforts to
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send legal mail had not been blocked. See ECF No. 10 at 2-3 (stating plaintiff had received
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fourteen pieces of legal mail and had sent four pieces of legal mail between March 5, 2018 and
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May 1, 2018); see also ECF No. 10-1 at 2-3, 9-10. In addition, a declaration filed under penalty
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of perjury by the litigation coordinator at CSP-Corcoran indicates that the California Department
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of Corrections and Rehabilitation’s (“CDCR”) policy requires that only correspondence with the
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courts and with the victim compensation board are logged as legal mail. See ECF No. 10-1 at 2;
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see also ECF No. 11 at 7. Other confidential mail, such as mail to attorneys, mail to elected
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officials, or mail to legal services organizations, though confidential, is not logged as legal mail.
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See ECF No. 10-1 at 2-3. As a result, an inmate could review his legal mail log maintained by
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the prison and mistakenly believe that such confidential mail had not been forwarded to the
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inmate or sent by prison staff. See id. The log that CSP-Corcoran maintains of plaintiff’s legal
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mail was attached in support of this declaration. See id. at 10. In light of these facts, plaintiff’s
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claims that his mail is being tampered with and/or that as a result, his access to the courts is being
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affected, appear to be unfounded.
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B.
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Plaintiff contends that his need for protection stems from the fact that in 2008, he was
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accused of trying to kill a prison officer. See ECF 6 at 3. As a result, an order to kill plaintiff
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was issued by CDCR. See id. According to plaintiff, thousands of inmates at six different
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prisons are aware that the kill order was issued, but they are not aware that it has been rescinded.
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See id.
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Failure to Protect
In its response to the court’s order to investigate these allegations, the declaration from the
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litigation coordinator at CSP-Corcoran indicates that plaintiff had submitted an inmate appeal
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which expressed that he had an enemy concern. See ECF No. 10-1 at 1-2, 4-8. It was received
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on March 20, 2018. See ECF No. 10-1 at 2. Plaintiff’s appeal was granted, and the individual
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has been added to plaintiff’s list of enemy separation alerts. See id. In addition, that individual is
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not currently housed at CSP-Corcoran. See id. The litigation coordinator further asserts that
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since arriving at CSP-Corcoran, plaintiff has not submitted any other inmate appeals claiming a
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threat to his safety. See id.
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Finally, the May 17, 2018 reply plaintiff filed in response to the OAG’s statement (see
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ECF No. 14) indicates that per a recent settlement agreement, a call was purportedly made from
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the OAG instructing Kernan to “stop the kill order on plaintiff’s life.” See ECF No. 14 at 1. As a
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result, plaintiff admits, the CDCR’s alleged attempts on his life have stopped. See id. Plaintiff
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asserts that gang members are still planning to kill him because they have not been told that
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Kernan “canceled the kill order.” ECF No. 6 at 3-4. He fails, however, to identify with
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specificity any particular individual or particular event that demonstrates he is likely to suffer
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irreparable harm at the hands of gang members should he not receive preliminary relief, nor does
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plaintiff suggest what particular type of injunctive relief he seeks. See generally ECF No. 6.
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Speculative injury does not constitute irreparable harm. See Caribbean Marine Servs. Co., 844
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F.2d at 674; Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). A
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presently existing actual threat must be shown, although the injury need not be certain to occur.
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See Zenith Radio Corp., 395 U.S. at 130-31; FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir.
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1997), cert. denied, 523 U.S. 1020 (1998); Caribbean Marine Servs. Co., 844 F.2d at 674.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a
district judge to this action
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IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary injunction
(ECF No. 6) 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, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Any response to the objections shall be served and filed within fourteen
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days after service of the objections. Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: May 30, 2018
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