Robledo v. Armenta

Filing 53

ORDER Denying (ECF No. 45 ) Motion for Temporary Restraining Order. Signed by Judge Dana M. Sabraw on 4/11/2019. (All non-registered users served via U.S. Mail Service)(tcf)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ADAM J. ROBLEDO,

Case No.: 18-cv-00177-DMS-BGS
Plaintiff,

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v.

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ORDER DENYING
MOTION FOR TEMPORARY
RESTRAINING ORDER
(ECF NO. 45)

F. ARMENTA, et al.,
Defendants.

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Plaintiff Adam J. Robledo, a state prisoner who self-identifies as a woman, is

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proceeding pro se and in forma pauperis. Plaintiff has filed a civil rights complaint

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pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Pending before the Court is Plaintiff’s Ex

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Parte Notice of Motion for “Emergency Protection” and Temporary Restraining Order

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(“TRO”) pursuant to Federal Rule of Civil Procedure 65(a).

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Plaintiff seeks an order directing the California Department of Corrections and

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Rehabilitation (“CDCR”)’s Undersecretary, Kathleen Allison, to “coordinate a safe

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transfer” away from the facility in which she is currently incarcerated, Richard J. Donovan

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Correctional Facility in San Diego (“RJD”), to a facility near her home1 and where her next

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The Court notes that Plaintiff fails to state the location of her home.
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of kin “can visit and verify if [she is] still alive.” Plaintiff further seeks an order directing

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that she be reunited with her former cellmate, Zuri S.K. Young, who she claims provided

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her with safety and assisted her with pending litigation.

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On December 7, 2018, Young engaged in a verbal exchange with a corrections

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officer and was subsequently transferred to another correctional facility. Plaintiff contends

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CDCR staff purposely separated Young to prevent him from assisting Plaintiff with this

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litigation and other pending cases against the corrections staff. Plaintiff claims this act was

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done in retaliation for the prior suits she filed against the facility staff. She also claims she

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was falsely charged with crimes such as “resisting,” and that “C/O sponsored gang-

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members” and others were paid by CDCR staff “with [Plaintiff’s and Young’s] personal

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property” to “harm and murder [Plaintiff].” After Young was removed, corrections officers

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also removed his personal belongings. Plaintiff claims that personal property was used to

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“pay off” others who had been doing “dirty work” for one of the corrections officers.

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Plaintiff also asserts she was threatened by “2 to 3 Mexican STG’s” who told her, “You

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should’ve never got involved with our business.” Plaintiff, however, fails to provide any

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evidence in support of these allegations or details regarding how her safety and security

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have been threatened at RJD.

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Federal Rule of Civil Procedure 65(a) generally provides that a court may issue a

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TRO only on notice to the adverse party. See Bowell v. Schwarzenegger, No. 6-02836,

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2007 WL 1704211, at *1 (N.D. Cal. June 7, 2007); Ochoa v. Campbell, 266 F. Supp. 3d

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1237, 1248 (E.D. Wash. 2017). Rule 65(b) permits issuance of a TRO without notice but

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only if specific facts in an affidavit clearly show that immediate and irreparable harm will

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result if notice and an opportunity to respond are required, or if the movant certifies in

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writing that efforts were made to serve the adverse party with notice and that notice should

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be excused. See Arellano v. Santos, No. 18-02391, 2018 WL 6191389, at *6 (S.D. Cal.

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Nov. 28, 2018). Here, Plaintiff did not provide notice to Defendants, nor did she articulate

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why notice should not be required. See Zepeda v INS, 753 F.2d 719, 727 (9th Cir. 1983).

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Additionally, Plaintiff has failed to show that immediate and irreparable harm would result

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if Defendants were provided such notice.

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Notably, even if the Court were to overlook these deficiencies, Plaintiff’s motion

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would still fail. “The purpose of a TRO is to preserve the status quo before a preliminary

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injunction hearing may be held; its provisional remedial nature is designed merely to

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prevent irreparable loss of rights prior to judgment.” Rios v Strayhorn, No. 17-00049, 2017

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WL 2549727, at *1 (S.D. Cal. June 13, 2017). “The standard for issuing a TRO is similar

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to the standard for issuing a preliminary injunction.” Id. “In order to demonstrate the need

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for preliminary injunctive relief, a party must show: ‘1) a strong likelihood of success on

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the merits, 2) the possibility of irreparable injury to plaintiff if preliminary relief is not

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granted, 3) a balance of hardships favoring the plaintiff, and 4) advancement of the public

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interest (in certain cases).’” Garcia v. Smith, No. 10-1187, 2010 WL 4054465, at *1 (S.D.

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Cal. Oct. 14, 2010) (citing Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th

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Cir. 2005). The Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, further

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requires that “prospective injunctive relief against a state prison system be ‘narrowly

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drawn, extend [ ] no further than necessary to correct the violation of the Federal right, and

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[be] the least intrusive means necessary to correct the violation of the Federal right.’” Id.

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at *1 (citing 18 U.S.C. § 3626). Plaintiff has not met the foregoing standard.

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As an initial matter, Plaintiff has failed to show a likelihood of success on the merits.

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In a prior order, the Court granted Defendants’ motion to dismiss Plaintiff’s complaint,

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with leave to amend, (ECF No. 49), finding that Plaintiff’s vague and conclusory

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allegations failed to state cognizable claims. (Id.) Further, Plaintiff seeks a TRO directing

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Defendants to transfer her to another corrections facility and reunite her with her former

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cellmate at that facility. However, prisoners do not have a constitutional right to be

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incarcerated at any particular institution. Garcia, 2010 WL 4054465, at *1 (citing Olim v.

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Wakinekona, 461 U.S. 238, 244–50 (1983)).

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While prisoners do have a constitutional right of access to the courts, see Bounds v.

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Smith, 430 U.S. 817 (1977), as well as a “right to receive assistance from other prisoners,”
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those rights are “conditioned upon a showing that the inmate[] in question did not have

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adequate access to the court without the help of another prisoner.” Oster v. Clarke, No. 7-

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5508, 2009 WL 279056, at *4 (W.D. Wash. Feb. 2, 2009) (internal citations and quotations

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omitted). Here, Plaintiff alleges that Young helped “about 10 other inmates with legal-

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work,” and helped Plaintiff “successfully win all [her] cases.” However, Plaintiff fails to

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assert that she does not have meaningful access to the courts without Young’s assistance.

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Nor does the Court find that Plaintiff’s access to the courts has been hampered by Young’s

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absence. Indeed, after Young was transferred, Plaintiff was able to file the present motion,

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which includes recitation of pertinent procedural history and a detailed factual account.

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She also filed a proposed subpoena (ECF No. 47) and a motion to compel (ECF No. 51).

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Because Plaintiff neither alleges facts nor provides evidence to support a finding that she

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is unable to pursue this litigation on her own, Plaintiff’s constitutional right of access to

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the courts has not been violated by the transfer of her “jailhouse lawyer.” See Buise v

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Hudkins, 584 F.2d 223, 228 (7th Cir. 1978) (“[P]risoners are entitled to receive assistance

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from jailhouse lawyers where no reasonable alternatives are present and to deny this

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assistance denies the constitutional right of access to the courts.”)

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Plaintiff also contends that Young’s rights were violated when false reports were

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made against him and he was transferred in violation of CDCR policy. To the extent

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Plaintiff seeks redress for purported violations of Young’s rights, that claim fails—as pro

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se plaintiffs are prohibited from pursuing claims on behalf of others in a representative

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capacity. See Simon v Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (collecting

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cases); see also ECF No. 9 at 3–4, fn.2. In addition, “prison officials have broad authority

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to transfer prisoners from one facility to another.” Chen v. Tilton, No. 7-1780, 2007 WL

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2695299, at 2 (E.D. Cal. Sept. 11, 2007). Plaintiff has therefore failed to demonstrate a

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likelihood of success on the merits.

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Plaintiff has also failed to show irreparable harm. The claims of retaliation and

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threats of harm are speculative, lack specific detail and do not demonstrate immediate

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threatened injury. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th
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Cir. 1988) (“A plaintiff must do more than merely allege imminent harm sufficient to

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establish standing; a plaintiff must demonstrate immediate threatened injury as a

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prerequisite to preliminary injunctive relief.”); Chappell v. Stankorb, No. 11-01425, 2012

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WL 1413889, at *2 (E.D. Cal. Apr. 23, 2012) (denying injunctive relief where prisoner’s

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claims of injury based on current or future housing decisions were nothing “more than

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speculative.”), report and recommendation adopted, No. 11-01425, 2012 WL 2839816

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(E.D. Cal. July 9, 2012).

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For the foregoing reasons, Plaintiff’s motion is DENIED.

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IT IS SO ORDERED.

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Dated: April 11, 2019

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