Ashker et al v. Schwarzenegger et al

Filing 193

ORDER by Judge Claudia Wilken DENYING 157 MOTION FOR PRELIMINARY INJUNCTION. (ndr, COURT STAFF) (Filed on 4/18/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD ASHKER, et al., 5 6 No. C 09-5796 CW Plaintiffs, ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (Docket No. 157) v. 7 EDMUND G. BROWN, JR., et al., 8 Defendants. ________________________________/ 9 United States District Court For the Northern District of California 10 Plaintiffs, ten inmates at Pelican Bay State Prison, move for 11 a preliminary injunction. 12 of California, the Secretary of the California Department of 13 Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office 14 of Correctional Safety, and the Warden of Pelican Bay State 15 Prison, oppose the motion. 16 submission on the papers and now denies the motion. 17 18 Defendants, the Governor of the State The Court took the matter under BACKGROUND In December 2009, Plaintiffs Todd Ashker and Danny Troxell 19 filed this action challenging the conditions of confinement in 20 Pelican Bay’s Secure Housing Unit (SHU), where they both live. 21 Docket No. 1, Compl. ¶¶ 16-18. 22 various CDCR officials with violating their First, Fifth, Eighth, 23 and Fourteenth Amendment rights. Their pro se complaint charged Id. ¶ 8. 24 On September 10, 2012, after securing counsel, Ashker and 25 Troxell filed a second amended complaint (2AC) that added eight of 26 their fellow SHU inmates as Plaintiffs and converted this suit 27 into a putative class action. 28 Docket No. 136, 2AC ¶ 1. In their 1 2AC, they assert claims under the Eighth and Fourteenth Amendments 2 and seek declaratory and injunctive relief. 3 Id. ¶¶ 177-202. Four days before Plaintiffs filed the 2AC, Plaintiff Ashker was transferred to a new cell within the SHU. 5 Ashker ¶ 21. 6 previous cell. 7 him from communicating with his co-Plaintiffs in this litigation, 8 all of whom are housed in his old pod. 9 particular note, he asserts that his transfer makes it impossible 10 United States District Court For the Northern District of California 4 for him to communicate with Troxell, who had previously served as 11 Ashker’s writing assistant by helping him draft letters and pro se 12 legal documents.1 13 that prevents him from writing for long periods of time, contends 14 that his separation from Troxell has made it “much more painful 15 for [him] to write to [his] attorneys as well as others with whom 16 [he has] corresponded for many years.” 17 of Danny Troxell ¶¶ 3, 7. 18 Declaration of Todd The new cell is located in a different pod from his Ashker asserts that the cell’s location prevents Id. ¶¶ 8-12. Of Ashker, who suffers from a physical disability Id. ¶¶ 6-12; Declaration Ashker now alleges that Defendants ordered his transfer in 19 retaliation for his litigation and other advocacy activities. 20 asserts that the move undermines his ability to participate in 21 this suit by hindering his ability to discuss litigation strategy 22 with his co-Plaintiffs and communicate with his attorneys. 23 ¶¶ 30-31; Troxell Decl. ¶ 8; Declaration of Jules Lobel ¶¶ 6-7. 24 He seeks a preliminary injunction directing Defendants to return 25 him to his old cell and prohibiting them from transferring him He Id. 26 1 27 28 According to Ashker, guards permitted him and Troxell to exchange certain writing materials between their adjacent cells, pursuant to an “informal understanding” between Ashker and CDCR officials. Ashker Decl. ¶¶ 7, 10, Ex. C. 2 1 again during the pendency of this litigation. 2 Mot. Prelim. Inj. 1. Docket No. 157, 3 Defendants oppose Ashker’s request and contend that his 4 transfer was not ordered for retaliatory reasons but, rather, to 5 protect Ashker’s safety. 6 declaration from the Pelican Bay gang investigator whose 7 investigation prompted Ashker’s transfer. 8 declaration is sealed, the investigator’s underlying assertion is 9 that Ashker would have been exposed to certain security risks had United States District Court For the Northern District of California 10 For support, they have submitted a Although much of the he remained in his old cell. 11 DISCUSSION 12 A party seeking a preliminary injunction “must establish that 13 he is likely to succeed on the merits, that he is likely to suffer 14 irreparable harm in the absence of preliminary relief, that the 15 balance of equities tips in his favor, and that an injunction is 16 in the public interest.” 17 Inc., 555 U.S. 7, 20 (2008). 18 injunction could issue where the likelihood of success is such 19 that serious questions going to the merits were raised and the 20 balance of hardships tips sharply in plaintiff’s favor,” so long 21 as the plaintiff demonstrates irreparable harm and shows that the 22 injunction is in the public interest. 23 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation 24 and internal quotation and editing marks omitted). 25 Winter v. Natural Res. Def. Council, Alternatively, “a preliminary Alliance for the Wild Ashker has not satisfied either of these standards because he 26 has not addressed his likelihood of success on the merits of his 27 claims in this suit. 28 presented sufficient evidence to support a claim of prison Although Ashker asserts that he has 3 1 retaliation, Plaintiffs have not raised any such claim in their 2 2AC, which only alleges violations of the Eighth and Fourteenth 3 Amendments. 4 Other courts have denied preliminary injunctive relief in 5 situations like this. 6 Eighth Circuit denied a prisoner’s motion for a preliminary 7 injunction where the motion was “based on new assertions of 8 mistreatment that are entirely different from the claim raised and 9 the relief requested in his [complaint].” In Devose v. Herrington, for example, the 42 F.3d 470, 471 (8th United States District Court For the Northern District of California 10 Cir. 1994) (per curiam). 11 Eighth Amendment suit challenged the adequacy of his medical 12 treatment, alleged that prison officials had issued disciplinary 13 sanctions against him in retaliation for filing the suit against 14 them. 15 support additional claims against the same prison officials, they 16 cannot provide the basis for a preliminary injunction in this 17 lawsuit.” 18 Id. The Devose plaintiff, whose underlying The court held, “Although these new assertions might Id. The same principle governs here. If the Court were to grant 19 Ashker’s motion, it would provide him with relief beyond that 20 which he would receive if Plaintiffs prevailed in this lawsuit. 21 This approach is disfavored. 22 Dist. LEXIS 71576, at *3 (N.D. Cal.) (“[A] preliminary injunction 23 may be granted only when the ‘intermediate relief [is] of the same 24 character as that which may be granted finally.’”) (citing De 25 Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)). 26 See, e.g., Tatum v. Puget, 2011 U.S. Ashker contends that, even if he cannot meet the traditional 27 requirements for preliminary injunctive relief, the Court should 28 nevertheless invoke its authority under the All Writs Act, 28 4 1 U.S.C. § 1651, and order Defendants to return him to his old cell. 2 The Court will not do so. 3 that his transfer was motivated by retaliatory animus and does not 4 rebut Defendants’ non-retaliatory justification for the 5 transfer -- namely, prisoner safety. 6 658 F.3d 1090, 1104 (9th Cir. 2011) (requiring plaintiffs in a 7 prison retaliation action to show that the prison officials’ 8 allegedly retaliatory conduct “did not reasonably advance a 9 legitimate correctional goal”). Ashker’s evidence does not indicate See Silva v. Di Vittorio, While Ashker asserts that he was United States District Court For the Northern District of California 10 transferred because he “initiated the pro se lawsuit that resulted 11 in the amended class action complaint filed in this Court,” Ashker 12 Decl. ¶ 16, his transfer was actually ordered before Plaintiffs 13 filed the amended complaint.2 14 Ashker’s retaliation claim and supports the Court’s decision not 15 to grant the relief he seeks here. 16 17 18 19 This sequence of events undermines CONCLUSION For the reasons set forth above, Ashker’s motion for a preliminary injunction (Docket No. 157) is DENIED. IT IS SO ORDERED. 20 21 Dated: 4/18/2013 22 CLAUDIA WILKEN United States District Judge 23 24 25 26 2 27 28 As noted above, Ashker was transferred on September 6, 2012. The Court did not grant Plaintiffs leave to file an amended complaint until September 10, 2012. See Docket No. 135, Order Granting Motion for Leave to File Second Amended Complaint. 5

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