Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 131

ORDER denying 120 Plaintiff's request for Preliminary Injunction. Signed by Magistrate Judge Andrew G. Schopler on 6/14/2021. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John Henry YABLONSKY,

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Case No.: 18-cv-1122-AGS
ORDER DENYING PLAINTIFF’S
REQUEST FOR PRELIMINARY
INJUNCTION (ECF 120)

Plaintiff,

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v.

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CALIFORNIA DEPARTMENT OF

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CORRECTIONS & REHABILITATION,

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et al.,

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Defendants.

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Plaintiff Yablonsky requests a preliminary injunction (1) for law-library access and
(2) for defendants to “stop retaliating.” (ECF 120, at 5.)

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BACKGROUND

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According to Yablonsky, between August 3, 2019, and September 5, 2019, he was

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only allowed a total of five hours1 of law-library access, although his status as a Priority

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Library User entitled him to four hours each week. (Id. at 2-3.) Plaintiff’s limited access

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allegedly hindered his ability to respond to (1) a Report and Recommendation issued in

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this case on August 21, 2019, with objections due September 4, 2019, and (2) another order

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in Yablonsky v. Canty, No. E068775, 2019 WL 3492488 (Cal. Ct. App. Aug. 1, 2019). (Id.

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at 3.) Yablonsky further alleges that in February 2021, defendants reduced his total library

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access to ten hours, or “less than half” of what he was entitled to. (Id. at 4.) Finally,

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Yablonsky contends that in March 2019, defendants “refused four more hours” of library

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access. (Id.)

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Elsewhere in the motion, Yablonsky claims he was “only allowed two hours of access,”
but then he later writes that “plaintiff had only two ½ hours of access.” (ECF 120, at 3
(emphasis added).) But according to a log submitted by defendants, Yablonsky had two
2.5-hour timeslots on August 30, 2019, for a total of five hours between August 3, 2019,
and September 5, 2019. (ECF 126-2, at 9.)
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DISCUSSION

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“In any civil action with respect to prison conditions,” a prisoner may move for, and

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“the court may enter a temporary restraining order or an order for preliminary injunctive

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relief.” 18 U.S.C. § 3626; see also Burnett v. Dugan, 618 F. Supp. 2d 1232, 1234 (S.D.

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Cal. 2009). A preliminary injunction is “an extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.

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Council, Inc., 555 U.S. 7, 22 (2008) (internal citation omitted).

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As a threshold requirement, a plaintiff requesting preliminary relief must

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demonstrate “a relationship between the injury claimed in the motion for injunctive relief

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and the conduct asserted in the underlying complaint.” Pac. Radiation Oncology, LLC v.

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Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). The relief requested here is for law-

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library access and for defendants to “stop retaliating.” In plaintiff’s second amended

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complaint, his access-to-courts claim has been dismissed. (See ECF 79, at 2-6.) But his

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retaliation and free-speech claims remain, and he specifically contends that defendants

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“order[ed] the reduction of plaintiff[’s] access into the law library, [t]o get even for

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appeal[l]ing their misconduct[].” (ECF 62, at 80.) So, the Court finds there is a nexus

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between the complaint and the relief requested in the motion.

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Turning to the merits, a plaintiff seeking a preliminary injunction must establish

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(1) “that he is likely to succeed on the merits”; (2) “that he is likely to suffer irreparable

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harm in the absence of preliminary relief”; (3) “that the balance of equities tips in his

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favor”; and (4) “that an injunction is in the public interest.” Winter, 555 U.S. at 20.

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A.

Likelihood of Success on the Merits

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Plaintiff’s underlying claims are for retaliation and free speech. Beyond reiterating

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the allegations in his second amended complaint (see ECF 130, at 4), Yablonsky provides

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no arguments or evidence addressing the likelihood of success on either of these claims.

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(See generally ECF 120; ECF 130.) The Court nonetheless conducts a cursory examination

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of his chances of success on the merits.

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1.

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In the prison context, a viable First Amendment retaliation claim must contain five

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elements: “(1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Allen v. Miller, 815 F. App’x 185, 186 (9th Cir.

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2020) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).

Retaliation

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Yablonsky does not satisfy elements two and five. For element two—that these

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adverse actions took place because of his appeals—plaintiff mostly makes conclusory

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statements about retaliatory intent. (See ECF 62, at 30 (“[A]s a result of plaintiff[’s]

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appeals[,] plaintiff[’s] access was restricted and terminated.”).) Yablonsky only provides

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evidence of intent in one instance: when “ISU officer Pickett” removed plaintiff’s legal

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notes from his cell, plaintiff “asked why this was being do[ne].” (Id. at 31.) “Staff [P]ickett

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then asked plaintiff [if he had] filed an appeal,” and Yablonsky “answered he had.” (Id.)

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“Pickett suggested ‘THAT MAY BE THE REASON’ then removed all of the remainder

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of plaintif[f’s] legal research.” (Id.) But Pickett has not been served in this case, and

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Yablonsky’s allegation that defendant McGuire (who has been served) had any connection

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with this event is speculative and conclusory. (See id. at 32.)

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Yablonsky also fails to demonstrate element five, that defendants’ actions did not

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reasonably advance a legitimate correctional goal. He claims that the prison staff did “not

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once offer[] [a] genuine pen[o]logical excuse for their actions.” (Id. at 25.) But it’s plaintiff

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who “bears the burden of pleading and proving the absence of legitimate correctional goals

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for the conduct of which he complains.” See Pratt v. Rowland, 65 F.3d 802, 806 (9th

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Cir. 1995). Again, Yablonsky offers no proof beyond conclusory statements. (See ECF 62,

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at 22 (“THERE ARE NO L[E]GITIMATE PEN[O]LOGICAL EXCUSES FOR THESE

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AC[]TS.”).) So, absent a showing of elements two and five, plaintiff fails to demonstrate a

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likelihood of success on his retaliation claim.

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2.

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Yablonsky’s free-speech claim is not discrete, but rather subsumed within his

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retaliation claim. In his second amended complaint, under his free-speech cause of action,

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plaintiff alleges that “defendants . . . took actions against plaintiff . . . to stop, frustrate,

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chill, [and] prevent plaintiff[’s] exercise of free speech when he filed appeals.” (Id. at 84

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(emphasis added).) So, the same likelihood-of-success analysis applies.

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B.

Free Speech

Irreparable Harm

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“Because it is a threshold inquiry, when a plaintiff has failed to show the likelihood

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of success on the merits,” the Court “need not consider the remaining three Winter

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elements.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (internal quotes and

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citation omitted). But plaintiff also fails to demonstrate irreparable harm. The library-

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appointment log shows that in February 2021, Yablonsky received 8-10 hours of law-

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library access, and between 16-18 hours in March 2021. (See ECF 126-2, at 12-13.) During

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this period, plaintiff filed several timely motions and responses. (See, e.g., ECF 101;

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ECF 107; ECF 109; ECF 112.) So, there is no evidence of ongoing harm, much less

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irreparable harm, in the absence of preliminary relief.

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CONCLUSION
Because plaintiff fails to demonstrate a likelihood of success on the merits or any

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irreparable harm, his request for preliminary injunctive relief is DENIED.

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Dated: June 14, 2021

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