Chavez v. Hansson et al

Filing 10

ORDER Regarding 9 Plaintiff's Letter. The Court hereby finds that to the extent Plaintiff's letter seeks preliminary injunctive relief, it must be denied without prejudice at this time. Signed by Judge Larry Alan Burns on 1/31/08. (vrp)

C h a v ez v. Hansson et al

Do c. 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plainti f f , a state prisoner currently incarcerated at Richard J. Donovan Correctional Facility ("RJDCF") in San Diego, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges two RJDCF staff psychiatrists Defendan ts. vs. JA SO N HANSSON, M.D.; L E O SALDIVAR, Ph.D; CR AI G KAISER, M .D., E R N E S T O CHAVEZ, C D C R #P-06885, P l a i n ti f f , O R D E R REGARDING PLAINTIFF'S LETTER [ D o c . No. 9] Civil No. 07-1405 LAB (CAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

(De fend ants Hansson and Kaiser) and a staff psychologist (Defendant Saldivar) have acted with delibe rate indifference to his serious mental health needs in violation of his Eighth Amendment. (S e e Compl. at 3.) Plaintiff seeks no damages, only injunctive relief preventing Defendants f r o m removing him from the "Enhanced Outpatient Program" ("EOP") and requiring "adequate a n d proper psych[iatric] treatment," including "the correct medications." (Id. at 7.) ///

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O n November 1, 2007, the Court granted Plaintiff leave to proceed in forma pauperis p u r s u a n t to 28 U.S.C. § 1915(a), and directed the U.S. Marshal to effect service of the summons a n d Complaint upon the Defendants pursuant to Fed.R.Civ.P. 4(c)(2) and 28 U.S.C. § 1915(d) [ D o c . No. 3]. Since then, the U.S. Marshal has been unable to execute service as to Defendants Han ss so n and Saldivar [Doc. Nos. 5-6].1 The U.S. Marshal has successfully executed service u p o n Defendant Kaiser, however, and on January 14, 2008, Defendant Kaiser filed a waiver of p e r s o n a l service pursuant to FED.R.CIV.P. 4(d) [Doc. No. 6]. On January 18, 2008, Plaintiff submitted a letter addressed to the Clerk of Court, which t h e Court accepted for filing despite its failure to comply with S.D. CAL. CIVLR 77.2 [Doc. Nos. 8 , 9]. In this letter, Plaintiff both advises the Court of the U.S. Marshal's service upon defendant Kaise r, but also asserts that "on or about January 11, 2008, [he] was threatened by [his] current primary care psychologist with removal" from the EOP, in which he has "been a participant for we ll over nine (9) years." See Letter at 1. Plaintiff acknowledges that his "continued [EOP] t r e a tm e n t is "the heart of his civil rights complaint and injunctive relief which [he] is r e q u e s ti n g . " To the extent Plaintiff's letter may be liberally construed to be a request for preliminary i n j u n c ti v e relief under FED.R.CIV.P. 65, however, Plaintiff must demonstrate "(1) a strong l i k e li h o o d of success on the merits, (2) the possibility of irreparable injury ... if preliminary relief is not granted, (3) a balance of hardships favoring [him], and (4) advancement of the public i n t e r e s t (in certain cases)." Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005) (citing J o h n s o n v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)) (internal q u o t a t io n marks and citation omitted). Alternatively, injunctive relief could be granted if The Court notes that the U.S. Marshal Service returned Plaintiff's attempts to serve defendants Hansson and Saldivar unexecuted on January 2, 2008, noting that the Litigation Coordinator at RJDCF informed them that neither of these parties is employed at RJDCF. See Doc. Nos. 5-6. Plaintiff is hereby advised that unless he corrects this deficiency in service, both defendants Hansson and Saldivar will be subject to dismissal pursuant to FED.R.CIV.P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with sufficient information to effect service of the summons and complaint within 120 days, sua sponte dismissal of the unserved defendants is appropriate); see also Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff "may not remain silent and do nothing to effectuate such service"; rather, "[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge").
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P l a i n ti f f "demonstrates `either a combination of probable success on the merits and the poss ibility of irreparable injury or that serious questions are raised and the balance of hardships t i p s sharply in his favor.'" Id. (citation omitted). "These two alternatives represent `extremes o f a single continuum,' rather than two separate tests." Clear Channel Outdoor Inc. v. City of L o s Angeles, 340 F.3d 810, 813 (9th Cir. 2003) (citation omitted). H e r e , Plaintiff's letter, by itself, is simply not sufficient to show either a strong likelihood o f success on the merits or the irreparable injury required to justify immediate injunctive relief. B e a r d s l e e, 395 F.3d at 1067. While the Court has found Plaintiff's Complaint sufficient to s u r v i v e the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A, this case is in the prelim in ary pleading stages. Thus, there is yet no evidence from which the Court may determine t h e likelihood that Plaintiff will actually prevail on the merits of his Eighth Amendment claims. In addition, Plaintiff's letter states that his "case manager, Dr. Bahro, Ph.D, stat[ed] [his] r e m o v a l is imminent, even though there are records which state [he is ] mentally ill." (See Pl.'s L e t t e r at 1.) To the extent Plaintiff seeks injunctive relief preventing Dr. Bahro from removing him from the EOP however, the Court has no jurisdiction. A federal district court may issue an i n j u n c ti o n only if it has personal jurisdiction over the parties and subject matter jurisdiction over t h e lawsuit. The court may not attempt to determine the rights of persons not before the court. S e e , e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 7 5 3 F.2d 719, 727-28 (9th Cir. 1983). Under Federal Rule of Civil Procedure 65(d), an i n j u n c ti o n binds only "the parties to the action, their officers, agents, servants, employees, and a t t o r n e ys , and ... those persons in active concert or participation with them who receive actual n o t i c e of the order ...." The district court must, therefore, tailor the injunction to affect only t h o s e persons over which it has power. See Gardner v. Westinghouse Broadcasting Co., 437 U . S . 478, 481 (1978). A district court lacks authority to issue an injunction directed at an entity t h a t is not a party before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). /// /// 3

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A s noted above, Plaintiff's Complaint names only three RJDCF officials as defendants: J a s o n Hansson, M.D., Leo Saldivar, Ph.D, and Craig Kaiser, M.D. Dr. Bahro , who is mentioned in Plaintiff's letter, is not named in his Complaint and therefore, is not a party to this action. The o n ly party over whom this Court currently has personal jurisdiction is Dr. Kaiser; however, Plaintiff's letter does not seek injunctive relief as to him. Therefore, this Court lacks the power to grant the injunctive relief Plaintiff appears to seek. See Zepeda, 753 F.2d at 727-28. C o n c l u s i o n and Order F o r all these reasons, the Court hereby finds that to the extent Plaintiff's letter seeks p r e l im i n a r y injunctive relief, it must be denied without prejudice at this time. I T IS SO ORDERED.

D A T E D : January 31, 2008

H ONORABLE LARRY ALAN BURNS U n i t e d States District Judge

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