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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER, et al.,

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No. C 09-5796 CW

Plaintiffs,

ORDER DENYING
MOTION FOR
PRELIMINARY
INJUNCTION (Docket
No. 157)

v.

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EDMUND G. BROWN, JR., et al.,

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Defendants.
________________________________/

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United States District Court
For the Northern District of California

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Plaintiffs, ten inmates at Pelican Bay State Prison, move for

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a preliminary injunction.

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of California, the Secretary of the California Department of

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Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office

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of Correctional Safety, and the Warden of Pelican Bay State

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Prison, oppose the motion.

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submission on the papers and now denies the motion.

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Defendants, the Governor of the State

The Court took the matter under

BACKGROUND
In December 2009, Plaintiffs Todd Ashker and Danny Troxell

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filed this action challenging the conditions of confinement in

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Pelican Bay’s Secure Housing Unit (SHU), where they both live.

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Docket No. 1, Compl. ¶¶ 16-18.

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various CDCR officials with violating their First, Fifth, Eighth,

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and Fourteenth Amendment rights.

Their pro se complaint charged

Id. ¶ 8.

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On September 10, 2012, after securing counsel, Ashker and

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Troxell filed a second amended complaint (2AC) that added eight of

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their fellow SHU inmates as Plaintiffs and converted this suit

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into a putative class action.

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Docket No. 136, 2AC ¶ 1.

In their

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2AC, they assert claims under the Eighth and Fourteenth Amendments

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and seek declaratory and injunctive relief.

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Id. ¶¶ 177-202.

Four days before Plaintiffs filed the 2AC, Plaintiff Ashker
was transferred to a new cell within the SHU.

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Ashker ¶ 21.

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previous cell.

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him from communicating with his co-Plaintiffs in this litigation,

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all of whom are housed in his old pod.

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particular note, he asserts that his transfer makes it impossible

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United States District Court
For the Northern District of California

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for him to communicate with Troxell, who had previously served as

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Ashker’s writing assistant by helping him draft letters and pro se

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legal documents.1

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that prevents him from writing for long periods of time, contends

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that his separation from Troxell has made it “much more painful

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for [him] to write to [his] attorneys as well as others with whom

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[he has] corresponded for many years.”

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of Danny Troxell ¶¶ 3, 7.

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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

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retaliation for his litigation and other advocacy activities.

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asserts that the move undermines his ability to participate in

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this suit by hindering his ability to discuss litigation strategy

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with his co-Plaintiffs and communicate with his attorneys.

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¶¶ 30-31; Troxell Decl. ¶ 8; Declaration of Jules Lobel ¶¶ 6-7.

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He seeks a preliminary injunction directing Defendants to return

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him to his old cell and prohibiting them from transferring him

He

Id.

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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.

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again during the pendency of this litigation.

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Mot. Prelim. Inj. 1.

Docket No. 157,

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Defendants oppose Ashker’s request and contend that his

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transfer was not ordered for retaliatory reasons but, rather, to

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protect Ashker’s safety.

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declaration from the Pelican Bay gang investigator whose

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investigation prompted Ashker’s transfer.

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declaration is sealed, the investigator’s underlying assertion is

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that Ashker would have been exposed to certain security risks had

United States District Court
For the Northern District of California

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For support, they have submitted a

Although much of the

he remained in his old cell.

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DISCUSSION

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A party seeking a preliminary injunction “must establish that

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he is likely to succeed on the merits, that he is likely to suffer

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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

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in the public interest.”

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Inc., 555 U.S. 7, 20 (2008).

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injunction could issue where the likelihood of success is such

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that serious questions going to the merits were raised and the

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balance of hardships tips sharply in plaintiff’s favor,” so long

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as the plaintiff demonstrates irreparable harm and shows that the

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injunction is in the public interest.

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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation

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and internal quotation and editing marks omitted).

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Winter v. Natural Res. Def. Council,
Alternatively, “a preliminary

Alliance for the Wild

Ashker has not satisfied either of these standards because he

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has not addressed his likelihood of success on the merits of his

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claims in this suit.

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presented sufficient evidence to support a claim of prison

Although Ashker asserts that he has

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retaliation, Plaintiffs have not raised any such claim in their

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2AC, which only alleges violations of the Eighth and Fourteenth

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Amendments.

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Other courts have denied preliminary injunctive relief in

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situations like this.

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Eighth Circuit denied a prisoner’s motion for a preliminary

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injunction where the motion was “based on new assertions of

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mistreatment that are entirely different from the claim raised and

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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

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Cir. 1994) (per curiam).

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Eighth Amendment suit challenged the adequacy of his medical

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treatment, alleged that prison officials had issued disciplinary

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sanctions against him in retaliation for filing the suit against

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them.

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support additional claims against the same prison officials, they

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cannot provide the basis for a preliminary injunction in this

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lawsuit.”

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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

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Ashker’s motion, it would provide him with relief beyond that

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which he would receive if Plaintiffs prevailed in this lawsuit.

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This approach is disfavored.

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Dist. LEXIS 71576, at *3 (N.D. Cal.) (“[A] preliminary injunction

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may be granted only when the ‘intermediate relief [is] of the same

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character as that which may be granted finally.’”) (citing De

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Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)).

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See, e.g., Tatum v. Puget, 2011 U.S.

Ashker contends that, even if he cannot meet the traditional

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requirements for preliminary injunctive relief, the Court should

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nevertheless invoke its authority under the All Writs Act, 28
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U.S.C. § 1651, and order Defendants to return him to his old cell.

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The Court will not do so.

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that his transfer was motivated by retaliatory animus and does not

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rebut Defendants’ non-retaliatory justification for the

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transfer -- namely, prisoner safety.

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658 F.3d 1090, 1104 (9th Cir. 2011) (requiring plaintiffs in a

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prison retaliation action to show that the prison officials’

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allegedly retaliatory conduct “did not reasonably advance a

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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

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transferred because he “initiated the pro se lawsuit that resulted

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in the amended class action complaint filed in this Court,” Ashker

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Decl. ¶ 16, his transfer was actually ordered before Plaintiffs

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filed the amended complaint.2

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Ashker’s retaliation claim and supports the Court’s decision not

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to grant the relief he seeks here.

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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.

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Dated: 4/18/2013

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CLAUDIA WILKEN
United States District Judge

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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.

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