Sekerke v. Gonzalez et al

Filing 86

ORDER: (1) Overruling Plaintiff's R & R Objections; (2) Adopting 78 R & R (3) And Denying 76 Ex Parte Request for a Prison Transfer and Motion for Injunction. It is ordered that the Court overrules Plaintiff's Objections; adopts Magistrate Judge Gallo's Report and Recommendation; and denies Plaintiff's Transfer Motion in its entirety. Signed by Judge Janis L. Sammartino on 5/26/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH WAYNE SEKERKE, Case No.: 15cv573-JLS (WVG) Plaintiff, 12 13 14 ORDER: (1) OVERRULING PLAINTIFF’S R. & R. OBJECTIONS; (2) ADOPTING R. & R. (3) AND DENYING EX PARTE REQUEST FOR A PRISON TRANSFER AND MOTION FOR INJUNCTION v. SHERIFF DEPUTY GONZALEZ; DEPUTY JOHN DOE; LISA GUIGUITE STARK, DDA; JOHN AND JANE DOES, DDA, et al., 15 16 Defendants. 17 (ECF Nos. 76 & 78) 18 19 Presently before the Court is Plaintiff’s Motion and Ex Parte Request for a Prison 20 Transfer and Order upon California Department of Corrections and Rehabilitation 21 (“CDCR”) Officials to Stop Retaliation and Assaults and Injunction (“Transfer Mot.”). 22 (ECF No. 76.) Approximately five days after the Court received the Transfer Motion, 23 Magistrate Judge William V. Gallo submitted a Report and Recommendation (“R. & R.”) 24 recommending that the Court deny Plaintiff’s requested relief. (ECF No. 78.) Plaintiff 25 subsequently filed two sets of Objections. (Pl.’s Objs. to Magistrate Judge’s Findings and 26 Recommendation (“Obj. I”), ECF No. 83; Pl.’s Suppl. Objs. to Magistrate Judge’s Findings 27 and Recommendations (“Obj. II”), ECF No. 84.) Having reviewed Judge Gallo’s 28 /// 1 15cv573-JLS (WVG) 1 Report and Recommendation, as well as Plaintiff’s Transfer Motion and Objections, the 2 Court DENIES Plaintiff’s Transfer Motion. 3 Procedurally, a federal district court may issue emergency injunctive relief only if it 4 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 5 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 6 that one “becomes a party officially, and is required to take action in that capacity, only 7 upon service of summons or other authority-asserting measure stating the time within 8 which the party served must appear to defend”). The court may not attempt to determine 9 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 10 U.S. 229, 234–35 (1916); Zepeda v. INS, 753 F.2d 719, 727–28 (9th Cir. 1983). Pursuant 11 to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 12 action,” their “officers, agents, servants, employees, and attorneys,” and “other persons 13 who are in active concert or participation” with them. Fed. R. Civ. P. 65(d)(2)(A)–(C). 14 In the present case, Plaintiff’s Transfer Motion seeks an injunction ordering “the 15 CDCR to transfer him to another prison and to order the guards at Kern Valley State Prison 16 to cease assaulting him and retaliating against him for attempting to litigate this lawsuit.” 17 (R. & R. 2.) However, as Judge Gallo correctly noted, Plaintiff’s claims in this lawsuit “are 18 against San Diego County Deputy Sheriff Gonzalez and occurred [approximately three 19 years ago] in a courtroom of the San Diego Superior Court.” (Id. at 3.) Accordingly, neither 20 CDCR nor any guard at Kern Valley State Prison are a party to this lawsuit, and “ordering 21 Plaintiff transferred to a different prison would not address or redress any alleged injury” 22 set forth in the operative Complaint “in the instant case.” (Id.) Otherwise put, the relief 23 Plaintiff requests—presented within the procedural posture of this lawsuit—falls outside 24 of the permissible jurisdictional scope set by Federal Rule of Civil Procedure 65 and 25 binding case law. This is fatal to Plaintiff’s request. (See R. & R. 3 (“Any alleged guard 26 assaults or retaliation against Plaintiff at Kern Valley State Prison in Delano, California are 27 factually disconnected from, and unrelated to, the core facts of this case and are properly 28 the subject of a separate section 1983 action if Plaintiff chooses to pursue that route.”).) 2 15cv573-JLS (WVG) 1 And Plaintiff’s Objections cannot skirt this threshold jurisdictional requirement. 2 Plaintiff’s first Objections focus on the threats and assaults he has allegedly endured while 3 in prison, as well as denials of access to the Prison Law Library, which have made it so 4 that he cannot “effectively prosecute [his] claims.” (E.g., Objs. I 2.) Plaintiff’s second 5 Objections again focus on denials of access to the Prison Law Library, recounting various 6 interactions with the Prison law librarians, and a general lack of Prison staffing. (Objs. II 7 1–5.) Even taking these objections as true, however, they do nothing to alleviate the 8 jurisdictional deficiencies noted above. (See, e.g., Objs. II 3 (“I do know and believe I’m 9 being retaliated against for REASONS UNRELATED to this case, but since this prison 10 does not have enough staff to provide meaningful access to [the] law library for all the 11 prisoners, it[’]s [a] justifiable reason for the Court to intercede.” (capitalization in 12 original).)1 13 Given the foregoing, the Court: 14 (1) OVERRULES Plaintiff’s Objections; 15 (2) ADOPTS Magistrate Judge Gallo’s Report and Recommendation; and 16 (3) DENIES Plaintiff’s Transfer Motion in its entirety. 17 IT IS SO ORDERED. 18 Dated: May 26, 2017 19 20 21 22 23 24 25 26 27 28 Plaintiff also seemingly requests a stay of the action if the Court does not grant relief: “[P]erhaps [t]he Honorable Court will stay the proceedings, please, until I get released or until this prison can hire the proper amount of staff.” (Obj. II 3.) However, a Supplemental Objection to a Magistrate Judge’s Report and Recommendation is not the proper place to request a new and distinct form of relief, especially one as drastic as a stay. Among other things, Defendant should have the chance to respond to such a request. 1 3 15cv573-JLS (WVG)

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