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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SELVIN O. CARRANZA,
CDCR #T-67780,
vs.

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ORDER:

Plaintiff,

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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.

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3) DENYING MOTION FOR
URGENT PRELIMINARY
INJUNCTION [ECF No. 29]

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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)

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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
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March 2014, by filing a letter with the Clerk of Court containing allegations that

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unidentified correctional officials at Richard J. Donovan Correctional

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Facility (“RJD”) staged a “gladiator-style fight” between him and another inmate on June

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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”)

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(ECF No. 14), denied his multiple requests for injunctive relief (ECF Nos. 16, 20, 22,

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27), and has granted him six separate extensions of time in which to file a Second

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Amended Complaint (“SAC”). (ECF Nos. 4, 6, 9, 14, 15, 27.) On August 17, 2016, the

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Court granted Plaintiff one “final” opportunity to amend, provided him with another copy

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of its form civil rights complaint, directed that he file it within 45 days, or by

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approximately October 3, 2016, and ordered him not to attach more than fifteen

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additional pages pursuant S.D. CAL. CIVLR 8.2.a. (ECF No. 27 at 6, 9.) Plaintiff was

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advised that should he fail to comply with the Court’s Order, it would dismiss his case.

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(Id. at 9.)

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In response, before the Court entered a final Order of dismissal, and more than a

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month after the time for compliance elapsed, Plaintiff filed another “Motion for Urgent

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Preliminary Injunction” (ECF No. 29), followed by a “Motion for Leave to Exceed Page

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Limits,” attached to which is his proposed Second Amended Complaint (ECF No. 33).

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Plaintiff has since submitted several additional documents supplementing his latest

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Motion for Injunctive Relief, including an ex parte request to schedule a status

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conference related to his most recent request for injunctive relief. (ECF Nos. 31, 35, 38,

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40).

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II.

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Motion to Exceed Page Limitations
The Court has previously ordered Plaintiff to amend in compliance with FED. R.

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CIV. P. 8(a)(2) and S.D. CAL. CIVLR 8.2.a which requires that complaints filed by

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prisoners pursuant to 42 U.S.C. § 1983 be legibly written on forms supplied by the Court,

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contain a short and plain statement of the claim, and not include more than 15 additional

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pages. See ECF No. 27 at 8-9 & n.2 (citing cases).
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Plaintiff has now submitted a 71-page SAC (ECF No. 33 at 4-75), which is

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untimely, and is comprised of more than 420 separately numbered paragraphs alleging

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multiple causes of action arising between June 2012 and May 2013 against more than 50

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named and unnamed California Department of Corrections and Rehabilitation (“CDCR”)

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administrative officials, California Peace Officers’ Association (“CCPOA”) members,

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CDCR appeals officials, RJD correctional officials, and RJD medical personnel. (Id. at 4-

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20.) Plaintiff seeks leave to exceed the Court’s page limitations because he “is not a

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professional writer” and has “never filed a civil action,” but he “had to name 55

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defendants,” had to “show what each Defendant did,” and has tried not to be

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“argumentative,” “redundant” or “prolix.” (See ECF No. 33 at 1-2.)

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Although the Court must construe his pleadings liberally, “[p]ro se litigants must

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follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per

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curiam); Carter v. Comm’r, 784 F.2d 1006, 1008 (9th Cir. 1986). On the other hand,

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“‘strict time limits . . . ought not to be insisted upon’ where restraints resulting from a pro

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se prisoner plaintiff’s incarceration prevent timely compliance with court deadlines.”

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Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380

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F.2d 465, 468 (9th Cir. 1967)); see also McGuckin v. Smith, 974 F.2d 1050, 1058 (9th

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Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir. 1997); Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (district court erred in

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not extending pro se prisoner’s time for filing an amended complaint [which court held

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prisoner had the “right” to file under Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)] when

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prisoner’s failure to meet 30-day leave-to-amend deadline was result of alleged lockdown

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and confiscation of prisoner’s legal materials and where amended complaint was

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submitted within 30 days of original deadline).

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Here, the Court has, and will continue to construe Plaintiff’s pleadings liberally in

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light of his pro se status and his transfers between several prisons since he first initiated

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this case. See, e.g., ECF No. 27 at 1-2, n. 1. Accordingly, the Court GRANTS Plaintiff’s
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Motion to Exceed Page Limitations (ECF No. 33 at 1-3), and will further excuse his

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failure to file his SAC (ECF No. 33 at 4-77) within the forty-five days provided by its

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August 17, 2016. Plaintiff’s SAC, currently attached to his Motion to Exceed Page Limits

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(ECF No. 33 at 4-77) is hereby deemed filed nunc pro tunc to October 28, 2016, and shall

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hereafter be considered the operative pleading in this case. See Rhodes v. Robinson, 621

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F.3d 1002, 1005 (9th Cir. 2010) (“The amended complaint supersedes the original, the

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latter being treated thereafter as non-existent.”) (citing Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967)).

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III.

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Screening of Second Amended Complaint
As Plaintiff knows, the Prison Litigation Reform Act (“PLRA”) required the Court

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review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who

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are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program,” at the time of filing “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the

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PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes, 621 F.3d at 1004 (discussing

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28 U.S.C. § 1915A(b)).

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A.

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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

Standard of Review

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suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

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n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

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(7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a

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claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,
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1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the

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familiar standard applied in the context of failure to state a claim under Federal Rule of

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Civil Procedure 12(b)(6)”).

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Every complaint must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there

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are well-pleaded factual allegations, a court should assume their veracity, and then

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determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

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“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

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specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. The “mere possibility of misconduct” falls short of meeting this

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plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

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Cir. 2009).

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While a plaintiff’s factual allegations are taken as true, courts “are not required to

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indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

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627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

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(9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

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pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

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civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
Plaintiff’s Allegations

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B.

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As noted above, Plaintiff’s Second Amended Complaint (ECF No. 33 at 4-77)

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names more than 50 prison officials as Defendants. (Id. at 4-20.) Some are named as
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individuals; others are unnamed groups. He does, however, divide his pleading into five

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separate counts which allege several identifiable causes of action.

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In Count One, Plaintiff claims that on June 22, 2012, RJD officials L. Tillman, S.

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Rink, K. Thaxton, E. Pimentel, N. Scharr, J. Rodriguez, J. Reyes, E. Garcia, L. Brown,

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and W. Suglich conspired and set him up to fight another inmate “gladiator style” and

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then used excessive force by shooting him in order to break up the fight in violation of

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the Eighth Amendment. (Id. at 21, 30-38, ¶¶ 1-72.)

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In Count Two, Plaintiff claims that on August 10, 2012, Defendant Tillman

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assaulted him “in retaliation” for his having complained about the June 22, 2012 incident,

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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.

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Lopez, R. Davis, L. Vanderweide, W. Shimko, I. Marquez, R. Lacosta, L. Romero, and

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other “unknown defendants” conspired to “beat,” “mutilate,” and attempted to “murder

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him by strangulation” while he was in handcuffs, and that others failed to intervene or

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provide him medical attention on August 15, 2012—again in violation of the Eighth

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Amendment and in retaliation for his previous complaints against staff. (Id. at 23, 43-55

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¶¶ 128-245.) He further claims Defendants R. Casper, N. Molina, and RN Sanchez

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laughed, taunted him, and failed to intervene during the incident, (id. at 51 ¶¶ 219-222),

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Defendants Vanderweide, Davis, Shimko, Rink, Buenrostro, and C. Hernandez kept him

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handcuffed for 10 hours afterward, refused to provide him medical attention, and

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conducted a “biased” investigation that ultimately resulted in disciplinary proceedings

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before Defendants E. Garcia, A. Hernandez, and Lt. R. Davis for which he was found

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guilty of battery on a peace officer, referred for criminal prosecution, and sentenced to a

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SHU term which he claims violated due process. (Id. at 53-57 ¶¶ 235-266.)

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In Count Four, Plaintiff claims RJD officials G. Savala, G. Stratton, J. Gomez, R.

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Davis, R. Lopez, Ojeda, C. Franco, Morales, Jackson, D. Arguillez, M. Stout, J. Brown,

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C. Meza, and G. Hernandez falsely accused him of exposing himself to a female officer

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on November 24, 2012, placed him in segregation, and charged and found him guilty of a
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“sex offense” in violation of due process, in order to damage his reputation, justify the

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cancellation of an internal “FBI investigation,” and to further retaliate against him for his

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“continuous” complaints and the exhaustion of his administrative remedies. (Id. at 24, 61-

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68, ¶¶ 295-366.)

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In Count Five, Plaintiff claims RJD officials D. Arguillez, R. Davis, A, Buenrostro,

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A. Silva, R. Lopez, R. Demesas, “and other unknown C/Os,” used excessive force against

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him again on April 18, 2013, while escorting him from his cell and in preparation for his

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transfer to Kern Valley State Prison. Plaintiff claims Defendants Lopez and Silva also

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failed to properly decontaminate him after he had been pepper sprayed, and RN Sanchez

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failed to attend to his injured wrist afterward—again all in “retaliation for [him]

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continuously complaining verbally and by filing 602[] staff complaints about correctional

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officers.” (Id. at 25, 68-71 ¶¶ 367-404.)

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C.

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As an initial matter, the Court notes Plaintiff’s SAC no longer names Kern Valley

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State Prison (“KVSP”) officials M.D. Biter, K. Hixon, J. Johns, N. Montanez, J. Custer,

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S.M. Buck, R. Davidson, Medrano, or “All Other Unknown Defendants, CCPOA

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Representatives/Correctional Officer Bystander at KVSP,” as parties, and his SAC fails

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to include any allegations of constitutional wrongdoing occurring at KVSP by any KVSP

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officials. Therefore, the Clerk is DIRECTED to terminate these identified and

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unidentified KVSP officials as parties to this action. See King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987) (noting that all claims not re-alleged in amended pleading are

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waived); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] [§ 1983] plaintiff must plead

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that each Government-official defendant, through the official’s own individual actions,

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has violated the Constitution.”).

KVSP Defendants

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D.

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As to the following Defendants included in Plaintiff’s SAC: Edmund G. Brown,

Supervisorial and all Unknown Defendants

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the Governor of California; Matthew Cate, the former Secretary of the CDCR; Jeffrey A.

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Beard, the current Secretary of the CDCR; D. Hoffman, Assistant Secretary of CDCR;
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Mike Jimenez, President of the CCPOA; John Doe, Vice President for CCPOA; K. Reid,

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CCPOA Representative and Correctional Captain at RJD; Unknown Defendants, All

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Policy Makers for CCPOA; Unknown Defendants, Statewide Policy Makers for CDCR;

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and All Other Unknown Defendants, CCPOA Representatives/Correctional Officers

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Bystanders at RJ Donovan, the Court finds them subject to sua sponte dismissal pursuant

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to 28 U.S.C. § 1915(e)(2) and § 1915A(b) because his SAC fails to contain allegations

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sufficient to state a plausible claim for relief against any of them. See Iqbal, 556 U.S. at

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676.

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Plaintiff claims broadly throughout his SAC that these Defendants, most identified

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only by their titles, and others identified only as unknown groups, “hired inadequate staff

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lacking training,” or conspired to either make or enforce unconstitutional policies that

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“creat[ed] incidents of violence” in order to ensure their “job security and to defraud the

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State and their unions.” See ECF No. 33 at 7-8, 21, 34-37, 42, 58, 61, 68, 71-72.

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First, the Court finds Plaintiff’s Complaint fails to state a claim for conspiracy

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between these parties under section 1983, because it offers only “naked assertions devoid

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of further factual enhancement,” Iqbal, 556 U.S. at 678, to show the existence of an

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agreement or a meeting of the minds to violate his constitutional rights, or any actual

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deprivation of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.

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2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001); see also Jones v. Jimenez, No.

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1:14-cv02045 LJO SAB PC, 2015 WL 8538922, at *7 (E.D. Cal. Dec. 11, 2015) (finding

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prisoner’s vague references to “green wall” conspiracy tactics insufficient to state a

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cognizable conspiracy claim, and therefore, subject to sua sponte dismissal pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A).

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Second, Plaintiff seeks to hold the Governor, and other high-ranking CDCR

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officials and California peace officer union representatives liable based solely on their

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positions or memberships within these organizations. However, his SAC contains no

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further “factual content” describing these Defendants’ direct involvement in any

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constitutional injury he actually alleges to have suffered. See Iqbal, 556 U.S. at 678. “All
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§ 1983 claims must be premised on a constitutional violation.” Nurre v. Whitehead, 580

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F.3d 1087, 1092 (9th Cir. 2009). To state a claim, Plaintiff must demonstrate that each

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person he seeks to sue personally participated in the deprivation of his constitutional

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rights. Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014). Liability may not be

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imposed on supervisory personnel for the acts or omissions of their subordinates under

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the theory of respondeat superior. Iqbal, 556 U.S. at 672-673. “In order for a person

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acting under color of state law to be liable under section 1983 there must be a showing of

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personal participation in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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Thus, to the extent Plaintiff seeks to premise liability upon these Defendants based

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only on broad and generalized references to their duties to adequately hire and train

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prison staff, or to refrain from making or enforcing “all their unconstitutional state-wide

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policies,” (ECF No. 33 at 68), his SAC fails to state any plausible claim for relief under

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§ 1983. Iqbal, 556 U.S. at 678.

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E.

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While Plaintiff makes similar generalized claims that RJD Warden Paramo “hired

Defendants Paramo, Pool, Lozano, Olson and Taylor

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inadequate staff,” and made “unconstitutional policies,” (ECF No. 33 at 9), he also

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alleges to have “delivered a letter” to Paramo in November 2012, that “detailed in writing

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all [his] complaints” regarding the incidents occurring on June 22, 2012 (Count One),

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August 10, 2012 (Count Two), August 15, 2012 (Count 3), and November 24, 2012

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(Count 4). (ECF No. 33 at 64 ¶¶ 336-337.) Plaintiff further claims Paramo reviewed his

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allegations of staff misconduct, “removed Rink from leading the investigation,” and in

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April 2013, “suspended the remainder of [his] SHU terms,” based on the August 15, 2012

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and November 24, 2012 incidents, and then “put [him] up for a special transfer out of

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RJD.” (Id. at 65-66, ¶¶ 346-348, 352.) Plaintiff does not provide any further “factual

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enhancement,” however, to show that Warden Paramo’s investigation or review of his

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staff complaints resulted in any independent violation of his constitutional rights. See

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Iqbal, 556 U.S. at 678; Colwell, 763 F.3d at 1070.
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As to Defendants K. Pool, J.D. Lozano, R. Olson, and J. Ramirez, all alleged to be

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Inmate Appeals officials (ECF No. 33 at 10), Plaintiff claims only that they “reviewed

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[his] 602 staff complaint” regarding his “staged fight and shooting” on June 22, 2012,

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and the “ongoing retaliation offenses that followed on August 10, 2012, August 15,

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2012, and November 24, 2012,” and either “refus[ed] to process them,” or “failed to

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address and terminate the … retaliation” via the 602 process. (ECF No. 33 at 10, 66-67

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¶ 356.) These allegations also fail to state a plausible claim upon which § 1983 relief may

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be granted. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams,

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855 F.2d 639, 640 (9th Cir. 1988); Greene v. Olvera, No. 1:16-CV-01605 LJO MJS PC,

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2017 WL 68138, at *8 (E.D. Cal. Jan. 5, 2017); Smith v. Calderon, No. C 99-2036 MJJ

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PR, 1999 WL 1051947 (N.D. Cal. 1999) (finding that failure to properly process

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grievances did not violate any constitutional right); Cage v. Cambra, No. C 96-2484 FMS

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1996 WL 506863 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly

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process and address grievances does not support constitutional claim); Murray v.

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Marshall, No. C 94–0285 EFL, 1994 WL 245967 (N.D. Cal. 1994) (concluding that

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prisoner’s claim that grievance process failed to function properly failed to state a claim

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under § 1983).

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Finally, as to Defendant Taylor, Plaintiff mentions him only once, and claims that

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“in March through April 18, 2013,” Taylor “deprived [him] of [an] annual food package

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sent by [his] family.” (ECF No. 33 at 66 ¶ 355.) Plaintiff concludes Taylor did so in order

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to “retaliate” against him, but he alleges no other facts to suggest Taylor refused the

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package because Plaintiff had engaged in any protected conduct. See Rhodes v. Robinson,

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408 F.3d 559, 567-68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir.

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1997). Therefore, Plaintiff has failed to state a plausible claim for relief against

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Defendant Taylor pursuant to § 1983. See Iqbal, 556 U.S. at 678.

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F.

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As for all remaining named Defendants, listed in Section V(4), identified by

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Remaining Claims and Defendants

Plaintiff as having personally participated in alleged violations of his First, Eighth, and
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Fourteenth Amendment rights on June 22, 2012 (Count One), August 10, 2012 (Count

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Two), August 15, 2012 (Count Three), November 24, 2012 (Count Four), and April 18,

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2013 (Count Five), the Court finds Plaintiff’s SAC sufficient to surpass the “low

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threshold” to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Iqbal, 556 U.S.

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at 678; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (holding that when prison officials

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stand accused of using excessive force in violation of the Eighth Amendment, the core

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judicial inquiry is “... whether force was applied in a good-faith effort to maintain or

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restore discipline, or maliciously and sadistically to cause harm.”); Estelle v. Gamble, 429

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U.S. 97, 105-06 (1976) (prison officials are liable if they act with deliberate indifferent to

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a prisoner’s serious medical needs); id. at 104 (deliberate indifference “is manifested by

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prison [officials] intentionally denying or delaying access to medical care.”); Rhodes, 408

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F.3d at 567-68 (First Amendment retaliation claim requires prisoner to allege: “(1) ... a

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state actor took some adverse action against [him] (2) because of (3) that prisoner’s

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protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.”).

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Therefore, the Court will order the U.S. Marshal to serve the remaining Defendants

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on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and

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serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he

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court may order that service be made by a United States marshal or deputy marshal ... if

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the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

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IV.

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Motion for Urgent Preliminary Injunction
As noted above, together with his SAC, Plaintiff has filed another Motion seeking

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immediate and preliminary injunctive relief (ECF No. 29), followed by several

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subsequent supplemental pleading in support (ECF Nos. 31, 35, 38), and an ex parte

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request to schedule a status conference related to his Motion (ECF No. 40).

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When Plaintiff filed his latest Motion, he was housed at California State Prison in
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Lancaster (“CSP-LAC”) (ECF No. 29); he has since been transferred to HDSP (ECF No.

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38). Plaintiff asks this Court to “order the Secretary for CDCR to permanently house

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[him] at [CSP-LAC].” (Id. at 1.) Plaintiff claims he has been transferred seven times over

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the course of the last 3 ½ years, and that prison officials at each of these facilities have

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transferred him “in mere retaliation as a result of [this] civil action.” (Id. at 1-3; ECF No.

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31 at 1-4.) Plaintiff requests permanent placement at CSP-LAC because HDSP is “about

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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.)

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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

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attempt to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke

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Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th

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Cir. 1983); Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953,

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961 (M.D. Fl. 1993); Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989);

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Suster v. Marshall, 952 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v.

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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

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65(d)(2) an injunction binds only “the parties to the action,” their “officers, agents,

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servants, employees, and attorneys,” and “other persons who are in active concert or

24

participation.” FED. R. CIV. P. 65(d)(2)(A)-(C).

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Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he

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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 273612
3:14-cv-00773-GPC-AGS

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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.

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

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6
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Finally, the PLRA further requires prisoners to satisfy additional requirements
when seeking preliminary injunctive relief against prison officials:

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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.

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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

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the equity jurisdiction of federal courts and to protect the bargaining power of prison

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administrators—no longer may courts grant or approve relief that binds prison

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administrators to do more than the constitutional minimum.” Gilmore v. People of the

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State of California, 220 F.3d 987, 998-99 (9th Cir. 2000).

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First, because Plaintiff’s case is still in its preliminary screening stage, the United

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States Marshal has yet to effect service on his behalf, Defendants have no actual notice,

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and the Court has no personal jurisdiction over any Defendant at this time. See FED. R.

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CIV. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28. In

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fact, the Court has found Plaintiff’s SAC fails to state a claim against the Secretary of the

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CDCR—the person Plaintiff requests this Court enjoin.

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Second, “[t]he fact that plaintiff has met the pleading requirements allowing him to

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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.

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Aug. 31, 2011), report and recommendation adopted, No. CIV S-10-2427 LKK, 2011

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WL 4765000 (E.D. Cal. Sept. 29, 2011). Instead, to meet the “irreparable harm”
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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

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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.

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65(b). “Speculative injury does not constitute irreparable injury sufficient to warrant

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granting a preliminary injunction.” Caribbean Marine, 844 F.2d at 674-75.

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Here, the Court finds that even if it had personal jurisdiction over the Secretary of

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CDCR, Plaintiff has failed to establish the imminent irreparable harm required to support

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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

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that governmental actors or agencies have violated the law in the past, as is the case here,

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Plaintiff must establish that the threat of future or repeated injury is both “real and

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immediate,” not just “conjectural” or “hypothetical.” City of Los Angeles v. Lyons, 461

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U.S. 95, 102 (1983).

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While it does appear Plaintiff has been transferred to several different prisons

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within the State of California since he first commenced this action, nothing in his current

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Motion suggests his transfer from CSP-LAC was “retaliatory.” Cf. Rhodes, 408 F.3d at

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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

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Classification Committee at CSP-LAC, none of the members of which are named as

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parties to this case, and based on enemy concerns, the “propensity for violence” arising at

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CSP-LAC’s ‘C’ Facility, and Plaintiff’s need to be housed in a “SNY facility.” See ECF

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No. 31 at 8-9 (“ICC elects to retain [Plaintiff] in ASU pending transfer” because “LAC

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does not have an alternate SNY facility.”).

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Plaintiff does not have a constitutional right to be housed in the institution of his

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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

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subsequent ex parte request for a status conference related to that Motion (ECF Nos. 29,

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40) are DENIED. See Lyons, 461 U.S. at 102.

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V.

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Conclusion and Orders
For all the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Exceed Page Limits [ECF No. 33];

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2)

DISMISSES the following Defendants as parties to this matter based on

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Plaintiff’s failure to state a claim against them in his Second Amended Complaint

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A: Edmund G. Brown, Jr.; Matthew Cate;

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Jeffrey A. Beard; D. Hoffman; Mike Jimenez; John Doe, Vice President for CCPOA;

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Unknown Defendants, All Policy Makers for CCPOA; Unknown Defendants, State Wide

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Policy Makers for CDCR; Daniel Paramo, Warden; M.D. Biter; K. Pool; J.D. Lozano; R.

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Olson; J. Ramirez; K. Hixon; J. Johns; N. Montanez; J. Custer; All Other Unknown

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Defendants, CCPOA Representatives/Correctional Officers Bystanders at RJ Donovan;

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S.M. Buck; R. Davidson; First Name Unknown Medrano; All Other Unknown

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Defendants, CCPOA Representatives/Correctional Officer Bystanders at KVSP; First

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Name Unknown Taylor; and K. Reid;

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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

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Form 285s for the remaining Defendants: W. Suglich; G. Stratton; Alan Hernandez; E.

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Garcia; Michael Stout; G. Hernandez; R. Davis, Correctional Lieutenant; C.P. Franco; S.

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Rink, G. Savala; Dion Arguillez; L. Tillman; J. Ojeda; L. Brown; J. Brown; A.
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3:14-cv-00773-GPC-AGS

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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;

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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);

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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
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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.

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7

IT IS SO ORDERED.
Dated: January 24, 2017

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