McElroy v. Adam et al

Filing 55

ORDER by Judge Yvonne Gonzalez Rogers denying 37 Second Motion for Preliminary Injunction and TRO; terminating as moot 54 Motion for Extension of Time to File Response/Reply. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/15/2019)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

E.J. MCELROY,
Plaintiff,

5
v.
6
7

NANCY ADAM,
Defendant.

Case No. 17-cv-03348-YGR (PR)
ORDER DENYING PLAINTIFF’S
SECOND REQUEST FOR
PRELIMINARY INJUNCTION AND
TRO; AND TERMINATING AS MOOT
DEFENDANT’S MOTION FOR AN
EXTENSION FOR TIME

8
9
10

United States District Court
Northern District of California

11
12
13

Plaintiff, a state prisoner who is currently incarcerated at the Richard J. Donovan
Correctional Facility (“RJDCF”), filed the instant pro se civil rights action pursuant to 42 U.S.C.
§ 1983 against prison officials at Pelican Bay State Prison (“PBSP”), where he was previously
incarcerated. It seems that Plaintiff claims that he was not provided with adequate medical and
dental care by Defendant Dr. Nancy Adam at PBSP.

14
15
16
17
18
19
20
21
22

Before the Court is Plaintiff’s Second Request for Preliminary Injunction and Temporary
Restraining Order (“TRO”).1 Dkt. 37. In its January 9, 2019 Order, the Court noted that
Plaintiff’s Second Request for Preliminary Injunction and TRO was difficult to decipher, but it
chose not to rule on that motion and, instead, it directed Defendant to respond to it. See Dkt. 49 at
3-5.
On February 4, 2019, Defendant filed a response, and on February 25, 2019, Plaintiff filed
his reply to the response. Dkts. 50, 51.
In response, Defendant argues that Plaintiff has not satisfied his burden to demonstrate a
need for a preliminary injunction or TRO, and states as follows:

23

As noted above, Plaintiff’s request for restraining order contains only
a few references to Dr. Adam which all correlate to Plaintiff’s
treatment at Pelican Bay State Prison. (Docket No. 37, pages 4, 5 and
6 of 11.) As the Court has noted, Plaintiff is no longer at Pelican Bay
State Prison where Dr. Adam is employed. (Docket No. 15.) His

24
25
26
27
28

The Court denied without prejudice Plaintiff’s First Request for Preliminary Injunction
and TRO (dkt. 29) because it had been made moot by his Second Request for Preliminary
Injunction and TRO (dkt. 37). See Dkt. 49 at 3-4.
1

request for preliminary injunction and/or TRO does not indicate that
he [sic] Dr. Adam is in any way responsible for his medical care at
R.J. Donovan State Prison. Nowhere does Plaintiff describe
irreparable harm that might occur to him if Dr. Adam is not enjoined
or restrained by the Court. Plaintiff lists nine forms of relief in his
request for preliminary injunction/TRO. (Docket No. 37 at 9-11.) All
relate to current conditions or seek monetary damages. Only one,
number 5, specifically relates to medical care. (Docket No. 37, 10:1215). There, Plaintiff makes a vague demand that “Medical
Defendants and their department are required to meet plaintiff
effective medical care necessities ‘promptly’ in accord with Exhibit
B also see Exhibit A.” Plaintiff’s request for current medical care
cannot properly be the subject of a TRO or preliminary injunction
directed to Dr. Adam at Pelican Bay State Prison. Regardless of the
nature of Plaintiff’s claims, a TRO or injunction directed at Dr. Adam
. . . 900 miles away from Plaintiff’s place of incarceration could not
be narrowly drawn, or the least intrusive means necessary to correct
any alleged violation of a constitutional right.

1
2
3
4
5
6
7
8
9
10

Accordingly, Plaintiff has not satisfied his burden to demonstrate a
need for a preliminary injunction or restraining order against Dr.
Adam.

United States District Court
Northern District of California

11
12
13

Dkt. 50 at 6-7.
First, the Court finds that Plaintiff’s Second Request for Preliminary Injunction and TRO

14

is procedurally deficient in that he has not provided specific facts in an affidavit or verified

15

complaint that clearly show an immediate and irreparable harm will result before the adverse party

16

can be heard in opposition. See Fed. R. Civ. P. 65(b)(1)(A). However, even if the notice problem

17

could be solved, Plaintiff would not be entitled to interim relief because the motion is

18

substantively deficient.

19

The Court finds that Plaintiff does not demonstrate a likelihood of success on the merits

20

and the possibility of irreparable injury without the TRO. See Winter v. Natural Res. Defense

21

Council, Inc., 555 U.S. 7 (2008). As explained above, Plaintiff is no longer incarcerated at PBSP,

22

where Defendant is employed. As Defendant has pointed out, “Plaintiff’s request for preliminary

23

injunction and/or TRO does not indicate that [Defendant] is in any way responsible for his medical

24

care at [RJDCF].” Dkt. 50 at 7. And, “[n]owhere does Plaintiff describe irreparable harm that

25

might occur to him if [Defendant] is not enjoined or restrained by the Court.” Id. The Court

26

agrees with Defendant. After reviewing Plaintiff’s nine forms of relief requested in his pending

27

motion, the Court also comes to the same conclusion as Defendant that they all relate to current

28

conditions of confinement at RJDCF or seek monetary damages. See Dkt. 37 at 9-11. As to
2

1

number 5 (listed as relief requested), which specifically relates to medical care, the Court finds

2

that any request for current medical care at RJDCF cannot properly be the subject of a preliminary

3

injunction or a TRO directed to Defendant at PBSP. Specifically, there is no showing that

4

Defendant can or should dictate the medical care for a patient Defendant has not seen since

5

Plaintiff was transferred out of PBSP, and there is no showing that Defendant has any control over

6

Plaintiff’s medical care at another prison, i.e., RJDCF. The Court will not issue a TRO that

7

Defendant is in no position to comply with, nor will it issue a TRO against non-parties, i.e.,

8

medical staff at RJDCF. See Fed. R. Civ. P. 65(d)(2) (restraining order binds only the parties,

9

their officers, agents, servants, employees, attorneys and persons in “active concert or participation
with [them]”); see generally Pride v. Correa, 719 F.3d 1130, 1138 (“When an inmate challenges

11

United States District Court
Northern District of California

10

prison conditions at a particular correctional facility, but has been transferred from the facility and

12

has no reasonable expectation of returning, his [injunctive relief] claim is moot.”) Accordingly,

13

Plaintiff’s Second Request for Preliminary Injunction and TRO is DENIED. Dkt. 37.

14

Also pending before the Court are: (1) Defendant’s motion to revoke Plaintiff’s in forma

15

pauperis status under 28 U.S.C. § 1915(g) and dismiss the case without prejudice (dkt. 43),

16

(2) Defendant’s motion for an extension of time to file a motion for summary judgment (dkt. 54);

17

(3) Plaintiff’s “Motion for Penal/Pecuniary Sanctions [and] Further Relief from Defendant[’]s

18

Delay and Failure to Produce Logical Reason[] of Delay/Costs” (dkt. 48); and (4) Plaintiff’s

19

motion entitled, “Motion for Judgment Upon Clear Establishment Agains[t] Defendant[] and/or

20

Counter Summary Judgment in Full Support” (dkt. 53). The Court notes that it has already

21

granted Defendant’s previously-filed request for an extension of time to file a motion for summary

22

judgment. See Dkt. 49 at 4-5. The Court has already set a briefing schedule directing Defendant

23

to file a motion for summary judgment sixty days after the Court rules on Defendant’s pending

24

motion to revoke Plaintiff’s in forma pauperis status under 28 U.S.C. § 1915(g) and dismiss the

25

case without prejudice. See id. Thus, Defendant’s motion for an extension of time to file a motion

26

for summary judgment is TERMINATED as moot. Dkt. 54.

27
28

The Court will rule on the other pending motions in a separate written Order. To date,
Plaintiff’s “Motion for Judgment Upon Clear Establishment Agains[t] Defendant[] and/or Counter
3

1

Summary Judgment in Full Support” (dkt. 53) is not fully briefed as Defendant’s response is due

2

on April 1, 2019, and Plaintiff’s reply is due April 15, 2019. The Court directs Defendant to also

3

respond to Plaintiff’s other pending “Motion for Penal/Pecuniary Sanctions [and] Further Relief

4

from Defendant[’]s Delay and Failure to Produce Logical Reason[] of Delay/Costs” using the

5

aforementioned briefing schedule.

6

This Order terminates Docket Nos. 37 and 54.

7

IT IS SO ORDERED.

8
9
10

Dated: March 15, 2019
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4