Carranza v. Unnamed Defendants

Filing 42

ORDER Granting 33 Motion to Exceed Page Limits; Dismissing Selected Defendants; Denying Motion for Urgent Preliminary Injunction; and Directing U.S. Marshal to Effective Service upon Remaining Defendants. The Court DIRECTS the Clerk to issue a summons as to Plaintiff's Second Amended Complaint; ORDERS the U.S. Marshal to serve a copy of Plaintiff's Second Amended Complaint. Signed by Judge Gonzalo P. Curiel on 1/24/17. (certified copy All non-registered users served via U.S. Mail Service)285 form & packet for plaintiff prepared (dlg)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 SELVIN O. CARRANZA, CDCR #T-67780, vs. 13 15 ORDER: Plaintiff, 12 14 Case No.: 3:14-cv-00773-GPC-AGS 1) GRANTING MOTION TO EXCEED PAGE LIMITS [ECF No. 33] EDMUND G. BROWN, Jr., Governor, et al., 2) DISMISSING SELECTED DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2) and § 1915A(b) Defendants. 16 17 18 3) DENYING MOTION FOR URGENT PRELIMINARY INJUNCTION [ECF No. 29] 19 20 4) DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON REMAINING DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) 21 22 23 24 25 26 27 28 I. Procedural History SELVIN O. CARRANZA (“Plaintiff”), currently incarcerated at Pleasant Valley State Prison (“PVSP”) and proceeding pro se, first initiated this civil rights action in 1 3:14-cv-00773-GPC-AGS 1 March 2014, by filing a letter with the Clerk of Court containing allegations that 2 unidentified correctional officials at Richard J. Donovan Correctional 3 Facility (“RJD”) staged a “gladiator-style fight” between him and another inmate on June 4 22, 2012, while he was incarcerated there. (See ECF No. 1 at 1.) The Court has since granted Plaintiff leave to proceed in forma pauperis (“IFP”) 5 6 (ECF No. 14), denied his multiple requests for injunctive relief (ECF Nos. 16, 20, 22, 7 27), and has granted him six separate extensions of time in which to file a Second 8 Amended Complaint (“SAC”). (ECF Nos. 4, 6, 9, 14, 15, 27.) On August 17, 2016, the 9 Court granted Plaintiff one “final” opportunity to amend, provided him with another copy 10 of its form civil rights complaint, directed that he file it within 45 days, or by 11 approximately October 3, 2016, and ordered him not to attach more than fifteen 12 additional pages pursuant S.D. CAL. CIVLR 8.2.a. (ECF No. 27 at 6, 9.) Plaintiff was 13 advised that should he fail to comply with the Court’s Order, it would dismiss his case. 14 (Id. at 9.) 15 In response, before the Court entered a final Order of dismissal, and more than a 16 month after the time for compliance elapsed, Plaintiff filed another “Motion for Urgent 17 Preliminary Injunction” (ECF No. 29), followed by a “Motion for Leave to Exceed Page 18 Limits,” attached to which is his proposed Second Amended Complaint (ECF No. 33). 19 Plaintiff has since submitted several additional documents supplementing his latest 20 Motion for Injunctive Relief, including an ex parte request to schedule a status 21 conference related to his most recent request for injunctive relief. (ECF Nos. 31, 35, 38, 22 40). 23 II. 24 Motion to Exceed Page Limitations The Court has previously ordered Plaintiff to amend in compliance with FED. R. 25 CIV. P. 8(a)(2) and S.D. CAL. CIVLR 8.2.a which requires that complaints filed by 26 prisoners pursuant to 42 U.S.C. § 1983 be legibly written on forms supplied by the Court, 27 contain a short and plain statement of the claim, and not include more than 15 additional 28 pages. See ECF No. 27 at 8-9 & n.2 (citing cases). 2 3:14-cv-00773-GPC-AGS 1 Plaintiff has now submitted a 71-page SAC (ECF No. 33 at 4-75), which is 2 untimely, and is comprised of more than 420 separately numbered paragraphs alleging 3 multiple causes of action arising between June 2012 and May 2013 against more than 50 4 named and unnamed California Department of Corrections and Rehabilitation (“CDCR”) 5 administrative officials, California Peace Officers’ Association (“CCPOA”) members, 6 CDCR appeals officials, RJD correctional officials, and RJD medical personnel. (Id. at 4- 7 20.) Plaintiff seeks leave to exceed the Court’s page limitations because he “is not a 8 professional writer” and has “never filed a civil action,” but he “had to name 55 9 defendants,” had to “show what each Defendant did,” and has tried not to be 10 “argumentative,” “redundant” or “prolix.” (See ECF No. 33 at 1-2.) 11 Although the Court must construe his pleadings liberally, “[p]ro se litigants must 12 follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 13 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per 14 curiam); Carter v. Comm’r, 784 F.2d 1006, 1008 (9th Cir. 1986). On the other hand, 15 “‘strict time limits . . . ought not to be insisted upon’ where restraints resulting from a pro 16 se prisoner plaintiff’s incarceration prevent timely compliance with court deadlines.” 17 Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 18 F.2d 465, 468 (9th Cir. 1967)); see also McGuckin v. Smith, 974 F.2d 1050, 1058 (9th 19 Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 20 Cir. 1997); Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (district court erred in 21 not extending pro se prisoner’s time for filing an amended complaint [which court held 22 prisoner had the “right” to file under Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)] when 23 prisoner’s failure to meet 30-day leave-to-amend deadline was result of alleged lockdown 24 and confiscation of prisoner’s legal materials and where amended complaint was 25 submitted within 30 days of original deadline). 26 Here, the Court has, and will continue to construe Plaintiff’s pleadings liberally in 27 light of his pro se status and his transfers between several prisons since he first initiated 28 this case. See, e.g., ECF No. 27 at 1-2, n. 1. Accordingly, the Court GRANTS Plaintiff’s 3 3:14-cv-00773-GPC-AGS 1 Motion to Exceed Page Limitations (ECF No. 33 at 1-3), and will further excuse his 2 failure to file his SAC (ECF No. 33 at 4-77) within the forty-five days provided by its 3 August 17, 2016. Plaintiff’s SAC, currently attached to his Motion to Exceed Page Limits 4 (ECF No. 33 at 4-77) is hereby deemed filed nunc pro tunc to October 28, 2016, and shall 5 hereafter be considered the operative pleading in this case. See Rhodes v. Robinson, 621 6 F.3d 1002, 1005 (9th Cir. 2010) (“The amended complaint supersedes the original, the 7 latter being treated thereafter as non-existent.”) (citing Loux v. Rhay, 375 F.2d 55, 57 (9th 8 Cir. 1967)). 9 III. 10 Screening of Second Amended Complaint As Plaintiff knows, the Prison Litigation Reform Act (“PLRA”) required the Court 11 review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who 12 are “incarcerated or detained in any facility [and] accused of, sentenced for, or 13 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 14 probation, pretrial release, or diversionary program,” at the time of filing “as soon as 15 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the 16 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 17 frivolous, malicious, fail to state a claim, or which seek damages from defendants who 18 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 19 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes, 621 F.3d at 1004 (discussing 20 28 U.S.C. § 1915A(b)). 21 A. 22 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious Standard of Review 23 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 24 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 25 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a 26 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 27 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 28 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 4 3:14-cv-00773-GPC-AGS 1 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the 2 familiar standard applied in the context of failure to state a claim under Federal Rule of 3 Civil Procedure 12(b)(6)”). 4 Every complaint must contain “a short and plain statement of the claim showing 5 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations 6 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 7 by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678 8 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there 9 are well-pleaded factual allegations, a court should assume their veracity, and then 10 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. 11 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 12 specific task that requires the reviewing court to draw on its judicial experience and 13 common sense.” Id. The “mere possibility of misconduct” falls short of meeting this 14 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 15 Cir. 2009). 16 While a plaintiff’s factual allegations are taken as true, courts “are not required to 17 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 18 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 19 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 20 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 21 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 22 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 23 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 24 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 25 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. Plaintiff’s Allegations 26 B. 27 As noted above, Plaintiff’s Second Amended Complaint (ECF No. 33 at 4-77) 28 names more than 50 prison officials as Defendants. (Id. at 4-20.) Some are named as 5 3:14-cv-00773-GPC-AGS 1 individuals; others are unnamed groups. He does, however, divide his pleading into five 2 separate counts which allege several identifiable causes of action. 3 In Count One, Plaintiff claims that on June 22, 2012, RJD officials L. Tillman, S. 4 Rink, K. Thaxton, E. Pimentel, N. Scharr, J. Rodriguez, J. Reyes, E. Garcia, L. Brown, 5 and W. Suglich conspired and set him up to fight another inmate “gladiator style” and 6 then used excessive force by shooting him in order to break up the fight in violation of 7 the Eighth Amendment. (Id. at 21, 30-38, ¶¶ 1-72.) 8 In Count Two, Plaintiff claims that on August 10, 2012, Defendant Tillman 9 assaulted him “in retaliation” for his having complained about the June 22, 2012 incident, 10 11 and Defendant R. Lemon failed to intervene. (Id. at 21, 38-43, ¶¶ 73-127.) In Count Three, Plaintiff claims RJD officials Tillman, Rink, A. Buenrostro, R. 12 Lopez, R. Davis, L. Vanderweide, W. Shimko, I. Marquez, R. Lacosta, L. Romero, and 13 other “unknown defendants” conspired to “beat,” “mutilate,” and attempted to “murder 14 him by strangulation” while he was in handcuffs, and that others failed to intervene or 15 provide him medical attention on August 15, 2012—again in violation of the Eighth 16 Amendment and in retaliation for his previous complaints against staff. (Id. at 23, 43-55 17 ¶¶ 128-245.) He further claims Defendants R. Casper, N. Molina, and RN Sanchez 18 laughed, taunted him, and failed to intervene during the incident, (id. at 51 ¶¶ 219-222), 19 Defendants Vanderweide, Davis, Shimko, Rink, Buenrostro, and C. Hernandez kept him 20 handcuffed for 10 hours afterward, refused to provide him medical attention, and 21 conducted a “biased” investigation that ultimately resulted in disciplinary proceedings 22 before Defendants E. Garcia, A. Hernandez, and Lt. R. Davis for which he was found 23 guilty of battery on a peace officer, referred for criminal prosecution, and sentenced to a 24 SHU term which he claims violated due process. (Id. at 53-57 ¶¶ 235-266.) 25 In Count Four, Plaintiff claims RJD officials G. Savala, G. Stratton, J. Gomez, R. 26 Davis, R. Lopez, Ojeda, C. Franco, Morales, Jackson, D. Arguillez, M. Stout, J. Brown, 27 C. Meza, and G. Hernandez falsely accused him of exposing himself to a female officer 28 on November 24, 2012, placed him in segregation, and charged and found him guilty of a 6 3:14-cv-00773-GPC-AGS 1 “sex offense” in violation of due process, in order to damage his reputation, justify the 2 cancellation of an internal “FBI investigation,” and to further retaliate against him for his 3 “continuous” complaints and the exhaustion of his administrative remedies. (Id. at 24, 61- 4 68, ¶¶ 295-366.) 5 In Count Five, Plaintiff claims RJD officials D. Arguillez, R. Davis, A, Buenrostro, 6 A. Silva, R. Lopez, R. Demesas, “and other unknown C/Os,” used excessive force against 7 him again on April 18, 2013, while escorting him from his cell and in preparation for his 8 transfer to Kern Valley State Prison. Plaintiff claims Defendants Lopez and Silva also 9 failed to properly decontaminate him after he had been pepper sprayed, and RN Sanchez 10 failed to attend to his injured wrist afterward—again all in “retaliation for [him] 11 continuously complaining verbally and by filing 602[] staff complaints about correctional 12 officers.” (Id. at 25, 68-71 ¶¶ 367-404.) 13 C. 14 As an initial matter, the Court notes Plaintiff’s SAC no longer names Kern Valley 15 State Prison (“KVSP”) officials M.D. Biter, K. Hixon, J. Johns, N. Montanez, J. Custer, 16 S.M. Buck, R. Davidson, Medrano, or “All Other Unknown Defendants, CCPOA 17 Representatives/Correctional Officer Bystander at KVSP,” as parties, and his SAC fails 18 to include any allegations of constitutional wrongdoing occurring at KVSP by any KVSP 19 officials. Therefore, the Clerk is DIRECTED to terminate these identified and 20 unidentified KVSP officials as parties to this action. See King v. Atiyeh, 814 F.2d 565, 21 567 (9th Cir. 1987) (noting that all claims not re-alleged in amended pleading are 22 waived); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] [§ 1983] plaintiff must plead 23 that each Government-official defendant, through the official’s own individual actions, 24 has violated the Constitution.”). KVSP Defendants 25 D. 26 As to the following Defendants included in Plaintiff’s SAC: Edmund G. Brown, Supervisorial and all Unknown Defendants 27 the Governor of California; Matthew Cate, the former Secretary of the CDCR; Jeffrey A. 28 Beard, the current Secretary of the CDCR; D. Hoffman, Assistant Secretary of CDCR; 7 3:14-cv-00773-GPC-AGS 1 Mike Jimenez, President of the CCPOA; John Doe, Vice President for CCPOA; K. Reid, 2 CCPOA Representative and Correctional Captain at RJD; Unknown Defendants, All 3 Policy Makers for CCPOA; Unknown Defendants, Statewide Policy Makers for CDCR; 4 and All Other Unknown Defendants, CCPOA Representatives/Correctional Officers 5 Bystanders at RJ Donovan, the Court finds them subject to sua sponte dismissal pursuant 6 to 28 U.S.C. § 1915(e)(2) and § 1915A(b) because his SAC fails to contain allegations 7 sufficient to state a plausible claim for relief against any of them. See Iqbal, 556 U.S. at 8 676. 9 Plaintiff claims broadly throughout his SAC that these Defendants, most identified 10 only by their titles, and others identified only as unknown groups, “hired inadequate staff 11 lacking training,” or conspired to either make or enforce unconstitutional policies that 12 “creat[ed] incidents of violence” in order to ensure their “job security and to defraud the 13 State and their unions.” See ECF No. 33 at 7-8, 21, 34-37, 42, 58, 61, 68, 71-72. 14 First, the Court finds Plaintiff’s Complaint fails to state a claim for conspiracy 15 between these parties under section 1983, because it offers only “naked assertions devoid 16 of further factual enhancement,” Iqbal, 556 U.S. at 678, to show the existence of an 17 agreement or a meeting of the minds to violate his constitutional rights, or any actual 18 deprivation of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 19 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001); see also Jones v. Jimenez, No. 20 1:14-cv02045 LJO SAB PC, 2015 WL 8538922, at *7 (E.D. Cal. Dec. 11, 2015) (finding 21 prisoner’s vague references to “green wall” conspiracy tactics insufficient to state a 22 cognizable conspiracy claim, and therefore, subject to sua sponte dismissal pursuant to 28 23 U.S.C. § 1915(e)(2) and § 1915A). 24 Second, Plaintiff seeks to hold the Governor, and other high-ranking CDCR 25 officials and California peace officer union representatives liable based solely on their 26 positions or memberships within these organizations. However, his SAC contains no 27 further “factual content” describing these Defendants’ direct involvement in any 28 constitutional injury he actually alleges to have suffered. See Iqbal, 556 U.S. at 678. “All 8 3:14-cv-00773-GPC-AGS 1 § 1983 claims must be premised on a constitutional violation.” Nurre v. Whitehead, 580 2 F.3d 1087, 1092 (9th Cir. 2009). To state a claim, Plaintiff must demonstrate that each 3 person he seeks to sue personally participated in the deprivation of his constitutional 4 rights. Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014). Liability may not be 5 imposed on supervisory personnel for the acts or omissions of their subordinates under 6 the theory of respondeat superior. Iqbal, 556 U.S. at 672-673. “In order for a person 7 acting under color of state law to be liable under section 1983 there must be a showing of 8 personal participation in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930, 9 934 (9th Cir. 2002); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 10 Thus, to the extent Plaintiff seeks to premise liability upon these Defendants based 11 only on broad and generalized references to their duties to adequately hire and train 12 prison staff, or to refrain from making or enforcing “all their unconstitutional state-wide 13 policies,” (ECF No. 33 at 68), his SAC fails to state any plausible claim for relief under 14 § 1983. Iqbal, 556 U.S. at 678. 15 E. 16 While Plaintiff makes similar generalized claims that RJD Warden Paramo “hired Defendants Paramo, Pool, Lozano, Olson and Taylor 17 inadequate staff,” and made “unconstitutional policies,” (ECF No. 33 at 9), he also 18 alleges to have “delivered a letter” to Paramo in November 2012, that “detailed in writing 19 all [his] complaints” regarding the incidents occurring on June 22, 2012 (Count One), 20 August 10, 2012 (Count Two), August 15, 2012 (Count 3), and November 24, 2012 21 (Count 4). (ECF No. 33 at 64 ¶¶ 336-337.) Plaintiff further claims Paramo reviewed his 22 allegations of staff misconduct, “removed Rink from leading the investigation,” and in 23 April 2013, “suspended the remainder of [his] SHU terms,” based on the August 15, 2012 24 and November 24, 2012 incidents, and then “put [him] up for a special transfer out of 25 RJD.” (Id. at 65-66, ¶¶ 346-348, 352.) Plaintiff does not provide any further “factual 26 enhancement,” however, to show that Warden Paramo’s investigation or review of his 27 staff complaints resulted in any independent violation of his constitutional rights. See 28 Iqbal, 556 U.S. at 678; Colwell, 763 F.3d at 1070. 9 3:14-cv-00773-GPC-AGS 1 As to Defendants K. Pool, J.D. Lozano, R. Olson, and J. Ramirez, all alleged to be 2 Inmate Appeals officials (ECF No. 33 at 10), Plaintiff claims only that they “reviewed 3 [his] 602 staff complaint” regarding his “staged fight and shooting” on June 22, 2012, 4 and the “ongoing retaliation offenses that followed on August 10, 2012, August 15, 5 2012, and November 24, 2012,” and either “refus[ed] to process them,” or “failed to 6 address and terminate the … retaliation” via the 602 process. (ECF No. 33 at 10, 66-67 7 ¶ 356.) These allegations also fail to state a plausible claim upon which § 1983 relief may 8 be granted. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 9 855 F.2d 639, 640 (9th Cir. 1988); Greene v. Olvera, No. 1:16-CV-01605 LJO MJS PC, 10 2017 WL 68138, at *8 (E.D. Cal. Jan. 5, 2017); Smith v. Calderon, No. C 99-2036 MJJ 11 PR, 1999 WL 1051947 (N.D. Cal. 1999) (finding that failure to properly process 12 grievances did not violate any constitutional right); Cage v. Cambra, No. C 96-2484 FMS 13 1996 WL 506863 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly 14 process and address grievances does not support constitutional claim); Murray v. 15 Marshall, No. C 94–0285 EFL, 1994 WL 245967 (N.D. Cal. 1994) (concluding that 16 prisoner’s claim that grievance process failed to function properly failed to state a claim 17 under § 1983). 18 Finally, as to Defendant Taylor, Plaintiff mentions him only once, and claims that 19 “in March through April 18, 2013,” Taylor “deprived [him] of [an] annual food package 20 sent by [his] family.” (ECF No. 33 at 66 ¶ 355.) Plaintiff concludes Taylor did so in order 21 to “retaliate” against him, but he alleges no other facts to suggest Taylor refused the 22 package because Plaintiff had engaged in any protected conduct. See Rhodes v. Robinson, 23 408 F.3d 559, 567-68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 24 1997). Therefore, Plaintiff has failed to state a plausible claim for relief against 25 Defendant Taylor pursuant to § 1983. See Iqbal, 556 U.S. at 678. 26 F. 27 As for all remaining named Defendants, listed in Section V(4), identified by 28 Remaining Claims and Defendants Plaintiff as having personally participated in alleged violations of his First, Eighth, and 10 3:14-cv-00773-GPC-AGS 1 Fourteenth Amendment rights on June 22, 2012 (Count One), August 10, 2012 (Count 2 Two), August 15, 2012 (Count Three), November 24, 2012 (Count Four), and April 18, 3 2013 (Count Five), the Court finds Plaintiff’s SAC sufficient to surpass the “low 4 threshold” to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 5 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Iqbal, 556 U.S. 6 at 678; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (holding that when prison officials 7 stand accused of using excessive force in violation of the Eighth Amendment, the core 8 judicial inquiry is “... whether force was applied in a good-faith effort to maintain or 9 restore discipline, or maliciously and sadistically to cause harm.”); Estelle v. Gamble, 429 10 U.S. 97, 105-06 (1976) (prison officials are liable if they act with deliberate indifferent to 11 a prisoner’s serious medical needs); id. at 104 (deliberate indifference “is manifested by 12 prison [officials] intentionally denying or delaying access to medical care.”); Rhodes, 408 13 F.3d at 567-68 (First Amendment retaliation claim requires prisoner to allege: “(1) ... a 14 state actor took some adverse action against [him] (2) because of (3) that prisoner’s 15 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 16 Amendment rights, and (5) the action did not reasonably advance a legitimate 17 correctional goal.”). 18 Therefore, the Court will order the U.S. Marshal to serve the remaining Defendants 19 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 20 serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he 21 court may order that service be made by a United States marshal or deputy marshal ... if 22 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 23 IV. 24 Motion for Urgent Preliminary Injunction As noted above, together with his SAC, Plaintiff has filed another Motion seeking 25 immediate and preliminary injunctive relief (ECF No. 29), followed by several 26 subsequent supplemental pleading in support (ECF Nos. 31, 35, 38), and an ex parte 27 request to schedule a status conference related to his Motion (ECF No. 40). 28 When Plaintiff filed his latest Motion, he was housed at California State Prison in 11 3:14-cv-00773-GPC-AGS 1 Lancaster (“CSP-LAC”) (ECF No. 29); he has since been transferred to HDSP (ECF No. 2 38). Plaintiff asks this Court to “order the Secretary for CDCR to permanently house 3 [him] at [CSP-LAC].” (Id. at 1.) Plaintiff claims he has been transferred seven times over 4 the course of the last 3 ½ years, and that prison officials at each of these facilities have 5 transferred him “in mere retaliation as a result of [this] civil action.” (Id. at 1-3; ECF No. 6 31 at 1-4.) Plaintiff requests permanent placement at CSP-LAC because HDSP is “about 7 a 15-20 hour bus ride” and is “extremely far from [his] family/mother in Long Beach, 8 Palos Verdes.” (ECF No. 31 at 2.) 9 Procedurally, however, a federal district court may issue emergency injunctive 10 relief only if it has personal jurisdiction over the parties and subject matter jurisdiction 11 over the lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 12 350 (1999) (noting that one “becomes a party officially, and is required to take action in 13 that capacity, only upon service of summons or other authority-asserting measure stating 14 the time within which the party served must appear to defend.”). The court may not 15 attempt to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke 16 Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th 17 Cir. 1983); Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 18 961 (M.D. Fl. 1993); Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989); 19 Suster v. Marshall, 952 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v. 20 Yamasaki, 442 U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give 21 only the relief to which plaintiffs are entitled”). Under Federal Rule of Civil Procedure 22 65(d)(2) an injunction binds only “the parties to the action,” their “officers, agents, 23 servants, employees, and attorneys,” and “other persons who are in active concert or 24 participation.” FED. R. CIV. P. 65(d)(2)(A)-(C). 25 Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he 26 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 27 absence of preliminary relief, that the balance of equities tips in his favor, and that an 28 injunction is in the public interest.” Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 273612 3:14-cv-00773-GPC-AGS 1 37 (2015) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 2 (2008)). “Under Winter, plaintiffs must establish that irreparable harm is likely, not just 3 possible, in order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. 4 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 5 6 7 Finally, the PLRA further requires prisoners to satisfy additional requirements when seeking preliminary injunctive relief against prison officials: 11 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 12 18 U.S.C. § 3626(a)(2). Section 3626(a)(2) places significant limits upon a court’s power 13 to grant preliminary injunctive relief to inmates, and “operates simultaneously to restrict 14 the equity jurisdiction of federal courts and to protect the bargaining power of prison 15 administrators—no longer may courts grant or approve relief that binds prison 16 administrators to do more than the constitutional minimum.” Gilmore v. People of the 17 State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). 8 9 10 18 First, because Plaintiff’s case is still in its preliminary screening stage, the United 19 States Marshal has yet to effect service on his behalf, Defendants have no actual notice, 20 and the Court has no personal jurisdiction over any Defendant at this time. See FED. R. 21 CIV. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28. In 22 fact, the Court has found Plaintiff’s SAC fails to state a claim against the Secretary of the 23 CDCR—the person Plaintiff requests this Court enjoin. 24 Second, “[t]he fact that plaintiff has met the pleading requirements allowing him to 25 proceed with the complaint does not, ipso facto, entitle him to a preliminary injunction.” 26 Claiborne v. Blauser, No. CIV S-10-2427 LKK, 2011 WL 3875892, at *8 (E.D. Cal. 27 Aug. 31, 2011), report and recommendation adopted, No. CIV S-10-2427 LKK, 2011 28 WL 4765000 (E.D. Cal. Sept. 29, 2011). Instead, to meet the “irreparable harm” 13 3:14-cv-00773-GPC-AGS 1 requirement, Plaintiff must do more than simply allege imminent harm; he must 2 demonstrate it. Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th 3 Cir. 1988). This requires Plaintiff to demonstrate by specific facts that he faces a credible 4 threat of immediate and irreparable harm, unless an injunction issues. FED. R. CIV. P. 5 65(b). “Speculative injury does not constitute irreparable injury sufficient to warrant 6 granting a preliminary injunction.” Caribbean Marine, 844 F.2d at 674-75. 7 Here, the Court finds that even if it had personal jurisdiction over the Secretary of 8 CDCR, Plaintiff has failed to establish the imminent irreparable harm required to support 9 a preliminary injunction. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 10 F.3d at 1131. This is because where immediate injunctive relief is sought based on claims 11 that governmental actors or agencies have violated the law in the past, as is the case here, 12 Plaintiff must establish that the threat of future or repeated injury is both “real and 13 immediate,” not just “conjectural” or “hypothetical.” City of Los Angeles v. Lyons, 461 14 U.S. 95, 102 (1983). 15 While it does appear Plaintiff has been transferred to several different prisons 16 within the State of California since he first commenced this action, nothing in his current 17 Motion suggests his transfer from CSP-LAC was “retaliatory.” Cf. Rhodes, 408 F.3d at 18 568; Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Instead, the exhibits Plaintiff has 19 submitted in support indicate his latest transfer from CSP-LAC to HDSP was cleared by a 20 Classification Committee at CSP-LAC, none of the members of which are named as 21 parties to this case, and based on enemy concerns, the “propensity for violence” arising at 22 CSP-LAC’s ‘C’ Facility, and Plaintiff’s need to be housed in a “SNY facility.” See ECF 23 No. 31 at 8-9 (“ICC elects to retain [Plaintiff] in ASU pending transfer” because “LAC 24 does not have an alternate SNY facility.”). 25 Plaintiff does not have a constitutional right to be housed in the institution of his 26 choice. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); McKune v. Lile, 536 U.S. 24, 27 39 (2002) (“It is well settled that the decision where to house inmates is at the core of 28 prison administrators’ expertise.”); Morman v. Dyer, No. 16-CV-01523-SI, 2016 WL 14 3:14-cv-00773-GPC-AGS 1 5358592, at *5 (N.D. Cal. Sept. 26, 2016). In addition, his current Motion fails to 2 establish, let alone allege, that he faces any “real and immediate” harm at HDSP, or at 3 any other CDCR institution other than CSP-LAC—the institution he prefers based on its 4 proximity to his family. (ECF No. 31 at 2; ECF No. 53 at 2; ECF No. 40 at 5). 5 For all these reasons, Plaintiff’s Motion for a Preliminary Injunction and his 6 subsequent ex parte request for a status conference related to that Motion (ECF Nos. 29, 7 40) are DENIED. See Lyons, 461 U.S. at 102. 8 V. 9 Conclusion and Orders For all the reasons discussed, the Court: 10 1) GRANTS Plaintiff’s Motion to Exceed Page Limits [ECF No. 33]; 11 2) DISMISSES the following Defendants as parties to this matter based on 12 Plaintiff’s failure to state a claim against them in his Second Amended Complaint 13 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A: Edmund G. Brown, Jr.; Matthew Cate; 14 Jeffrey A. Beard; D. Hoffman; Mike Jimenez; John Doe, Vice President for CCPOA; 15 Unknown Defendants, All Policy Makers for CCPOA; Unknown Defendants, State Wide 16 Policy Makers for CDCR; Daniel Paramo, Warden; M.D. Biter; K. Pool; J.D. Lozano; R. 17 Olson; J. Ramirez; K. Hixon; J. Johns; N. Montanez; J. Custer; All Other Unknown 18 Defendants, CCPOA Representatives/Correctional Officers Bystanders at RJ Donovan; 19 S.M. Buck; R. Davidson; First Name Unknown Medrano; All Other Unknown 20 Defendants, CCPOA Representatives/Correctional Officer Bystanders at KVSP; First 21 Name Unknown Taylor; and K. Reid; 22 23 24 3) DENIES Plaintiff’s Motion for Urgent Preliminary Injunction, as well as his ex parte request to schedule a status conference related to that Motion [ECF Nos. 29, 40]; 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Second Amended 25 Complaint (ECF No. 33 at 4-77) and forward it to Plaintiff along with blank U.S. Marshal 26 Form 285s for the remaining Defendants: W. Suglich; G. Stratton; Alan Hernandez; E. 27 Garcia; Michael Stout; G. Hernandez; R. Davis, Correctional Lieutenant; C.P. Franco; S. 28 Rink, G. Savala; Dion Arguillez; L. Tillman; J. Ojeda; L. Brown; J. Brown; A. 15 3:14-cv-00773-GPC-AGS 1 Buenrostro; R. Demesas; J. Gomez; C. Hernandez; First Name Unknown Jackson; R. 2 Lacosta; R. Lemon; Richard Lopez; Isaac Marquez; C. Meza; First Name Unknown 3 Morales; E. Pimentel; J. Reyes; J. Rodriguez; L. Romero; N. Scharr; W. Shimko; A. 4 Silva; K. Thaxton; J. L. Vanderweide; R. Casper; First Name Unknown Molina; First 5 Name Unknown RN Sanchez; and R. Davis, Correctional Officer. In addition, the Clerk 6 will provide Plaintiff with a certified copy of this Order, a certified copy of his Second 7 Amended Complaint, and the summons so that he may serve these Defendants. Upon 8 receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely and 9 accurately as possible, include an address where each named Defendant may be found 10 and/or subject to service, and return them to the United States Marshal according to the 11 instructions the Clerk provides in the letter accompanying his IFP package; 12 5) ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Second Amended 13 Complaint (ECF No. 33 at 4-77) and summons upon Defendants as directed by Plaintiff 14 on the USM Form 285s provided to him. All costs of that service will be advanced by the 15 United States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3); 16 6) ORDERS Defendants to reply to Plaintiff’s Second Amended Complaint 17 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 18 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 19 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, 20 or other correctional facility under section 1983,” once the Court has conducted its sua 21 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 22 a preliminary determination based on the face on the pleading alone that Plaintiff has a 23 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 24 7) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 25 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 26 counsel, a copy of every further pleading, motion, or other document submitted for the 27 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 28 original document he seeks to file with the Clerk of the Court, a certificate stating the 16 3:14-cv-00773-GPC-AGS 1 manner in which a true and correct copy of that document has been was served on 2 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 3 document received by the Court which has not been properly filed with the Clerk or 4 which fails to include a Certificate of Service upon Defendants, or their counsel, may be 5 disregarded. 6 7 IT IS SO ORDERED. Dated: January 24, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 3:14-cv-00773-GPC-AGS

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