Matthew v. Big Horn County Jail et al

Filing 60

ORDER denying 40 Motion for Injunctive Relief and/or Restraining Order; denying 44 Motion to Dismiss for Failure to State a Claim; denying 50 Motion for Equal Treatment ; denying 51 Motion to Rectify Conflict of Interest ; denying 52 M otion for Sanctions; denying 56 Motion to File Documents; denying 57 Motion for Restraining Order and Injunctive Relief; denying 58 Motion for No Contact Order and Order of Restraint ; denying 59 Motion Objecting to Defendants' Expert Witness Disclosures and Motion for Sanctions. Signed by Magistrate Judge Carolyn S Ostby on 1/25/2016. Mailed to Matthew. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 15-00038-BLG-CSO

DAVID JAMES MATTHEW,
Plaintiff,

ORDER

vs.
BIG HORN COUNTY JAIL, BIG
HORN COUNTY, SHERIFF
SIMPSON, BIG HORN VALLEY
CLINIC, DEPUTY ATKINSON, and
NURSE JAYLENE,
Defendants.

This matter is pending on the following motions:
(1) Matthew’s Motion for Injunctive Relief and/or Restraining
Order (ECF 40);
(2) Defendants’ Motion to Dismiss for Failure to state a claim
(ECF 44);
(3) Matthew’s Motion for Equal Treatment (ECF 50);
(4) Matthew’s Motion to Rectify Conflict of Interest (ECF 51);
(5) Defendants’ Motion for Sanctions (ECF 52);
(6) Matthew’s Motion to File Documents (ECF 56);

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(7) Matthew’s “Motion for Restraining Order and Injunctive Relief
Immediately Urgent. Second Motion” (ECF 57);
(8) Matthew’s Motion for No Contact Order and Order of Restraint
against Yellowstone County Detention Facility, County, and Staff
Therein (ECF 58); and
(9) Motion Objecting to Defendants’ “Expert Witness” Disclosure,
and Motion for Sanctions (ECF 59) .
I. Local Rule 7.1
There is no indication in any of the motions filed by the parties
that they consulted with each other regarding whether or not there
were objections to the motions. See D. Mont. L.R. 7.1(c)(1) (“The text of
the motion must state that other parties have been contacted and state
whether any party objects to the motion.”). The Local Rules do not
provide an exception because of a party’s incarceration. Counsel for
Defendants contend that “attempting to contact Plaintiff is nearly
impossible” due to his custody. Mtn to Dism. Brf., ECF 45 at 6. It is
Matthew’s obligation to keep the Court and the parties advised of his
current location. A letter sent to Matthew’s latest updated address

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and/or a letter sent from Matthew to counsel a week prior to the filing of
any motion will be sufficient to comply with this rule.
The Court may deny future motions that do not comply with Local
Rule 7.1.
II. Motions for Injunctive Relief and/or Restraining Order
As a general rule, courts may not issue orders against individuals
who are not parties to a suit pending before it. Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100 (1969); Zepeda v. United States
Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court
may issue an injunction if it has personal jurisdiction over the parties
and subject matter jurisdiction over the claim; it may not attempt to
determine the rights of persons not before the court.”). In his first
Motion for Injunctive Relief, Matthew seeks injunctive relief against the
Yellowstone County Detention Facility and Crossroads Correctional
Facility. ECF 40. These entities who are not parties to this action and
no injunctive relief may be issued against them in this action.
In his Motion for No Contact Order and Order of Restraint (ECF
58), Matthew seeks orders against the Yellowstone County Detention

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Facility, the County and Staff therein. Aside from Nurse Pinkerton,
these entities/individuals are not parties to this lawsuit and injunctive
relief may not be issued against them in this action.
Matthew also seeks an injunction against the United States
Marshals to prevent them from interfering with his right to present his
case. ECF 40 at 2. However, his only allegation against the United
States Marshals is that they transported him from Crossroads
Correctional Center in Shelby, Montana to the Yellowstone County
Detention Facility. No basis appears in the record that would allow the
Court to interfere with Marshals’ placement of Matthew.
Matthew seeks injunctive relief against Nurse Pinkerton because
she discussed this case with officers she works with at the Yellowstone
County Detention Facility and thereafter his legal materials were lost
(ECF 40) and that she provided him medicated shampoo in a paper cup
instead of a plastic cup (ECF 57, 58). “A preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citations
omitted). It serves as a tool to preserve the status quo and prevent

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irreparable loss of rights before judgment. Textile Unlimited, Inc. v. A..
BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). In reviewing a
motion for preliminary injunction, “courts must balance the competing
claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.” Winter, 555 U.S. at 24
(citations and internal quotation marks omitted). “A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” Winter, 555 U.S. at 20 (citations
omitted).
Winter does not expressly prohibit use of a “sliding scale approach
to preliminary injunctions” whereby “the elements of the preliminary
injunction test are balanced, so that a stronger showing of one element
may offset a weaker showing of another.” Alliance/or the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The Ninth Circuit
recognizes one such “approach under which a preliminary injunction
could issue where the likelihood of success is such that serious

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questions going to the merits were raised and the balance of hardships
tips sharply in plaintiff’s favor.” Id. (citations and internal quotation
marks omitted).
A preliminary injunction “should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Lopez v.
Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citations omitted,
emphasis in original). A request for a mandatory injunction seeking
relief well beyond the status quo is disfavored and shall not be granted
unless the facts and law clearly favor the moving party. Stanley v.
Univ. of S. Cal., 13 F.3d 1313, 1319–20 (9th Cir. 1994).
Matthew has not raised any allegations sufficient to grant an
injunction in this matter. In his first motion for an injunction (ECF 40),
Matthew alleges that Nurse Pinkerton only discussed this case with
officers with whom she works. He then makes broad speculations that
as a result of those conversations, officers at the Yellowstone County
Detention Facility lost his legal work. He seeks an injunction directing
Nurse Pinkerton from interfering with his right to defend himself.
There is no plausible allegation that Nurse Pinkerton has interfered

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with Matthew’s access to the courts. He makes only conclusory
statements that his ability to fight his criminal case and work on his
civil case is being hindered and interfered with but those conclusory
allegations are insufficient grounds upon which to issue a preliminary
injunction. He has not established a likelihood of success on the merits
or that the balance of hardships tips in his favor. His first motion for a
preliminary injunction (ECF 40) should be denied.
His second and third motions for injunctive relief (ECF 57, 58)
also fail. He is seeking injunctive relief against Nurse Pinkerton for
refusing to put his medicated shampoo in a plastic cup. Based upon
this, he alleges he does not feel safe because Nurse Pinkerton is in
control of his medications. He seeks an order requiring that Nurse
Pinkerton and all other parties in this case “make sure nothing bad
happens” to him and to restrain Defendants from causing further harm
to him. (ECF 57, 58).
As with his first motion, his conclusory, unsubstantiated
allegations are insufficient grounds upon which to grant injunctive
relief. His allegation that Nurse Pinkerton put his shampoo in the

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wrong type of cup does not plausibly suggest that he is danger. He has
not established a likelihood of success on the merits or that the balance
of hardships tips in his favor. His second and third motions for
preliminary injunction (ECF 57, 58) should also be denied.
III. Defendants’ Motion to Dismiss (ECF 44)
Defendants’ Motion to Dismiss should also be denied. The Court
reviewed both Matthew’s initial Complaint (ECF 2) and the Supplement
to his Complaint (ECF 39) under 28 U.S.C. § 1915A(b) and §
1915(e)(2)(B) to determine if those filings were frivolous or malicious,
failed to state a claim upon which relief may be granted, or sought
monetary relief from a defendant who is immune from such relief. By
ordering the service of those pleadings upon Defendants, the Court
found that Matthew’s pleadings stated a claim. Without citing to
authority, Defendants argue that the Supplement to the Complaint sets
forth no specific facts giving rise to a cause of action against the new
Defendants. By requiring Defendants to file a responsive pleading to
the Supplement to the Complaint, the Court has made the
determination pursuant to 28 U.S.C. §§ 1915, 1915A that read together,

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the Complaint and Supplement thereto stated a claim upon which relief
may be granted. The motion should be denied.
IV. Matthew’s Remaining Motions
Matthew has filed a number of requests and motions without any
support or basis. Affirmative “requests” for court action made in briefs
rather than in motions generally are improper. Nonetheless, the Court
will address these requests as follows.
In his response to Defendants’ Motion to Dismiss, Matthew asks
the Court to restrain the U.S. Marshals from unnecessary transfers of
Matthew and to order the Marshals to house Matthew at Crossroads
Correctional Center (ECF 48 at 8); for the Court to appoint an
investigator to investigate and report to the Court on all matters and
allegations regarding the case (ECF 48 at 9); that the Court render a
decision on Matthew’s motion requesting his own private investigator
(ECF 48 at 9); and that the Court provide Matthew with copies of all
documents Matthew has filed with the court. (ECF 48 at 9.)
As set forth above, the Court will not interfere with the Marshals
placement of Matthew. The Court previously denied Matthew’s motion

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for litigation assistance and for a paralegal (Ord. dated Dec. 8, 2015,
ECF 38 at 3). For the reasons set forth in that Order, Matthew’s
request for an investigator will be denied. Matthew was advised in the
December 8, 2015 Order that he could enclose a self-addressed stamped
envelope with his filings and the Clerk’s Office would return his
originals to him. (ECF 38 at 4-5). The Court may not free-of-charge
provide Matthew copies of all the documents he has filed. He may
contact the Clerk’s Office to arrange for payment of those documents.
Matthew filed a “Motion for Equal Treatment of Citizens and
Equal Protection of the Law and Justice, From the Court.” (ECF 50).
Matthew complains that he is being treated unequally in that counsel
for Defendants is being paid by the citizens of Big Horn County. (ECF
50). Matthew has chosen to sue employees of Big Horn County and
those employees are entitled to a defense. The motion will be denied.
Matthew has also filed a “Motion Requesting Court Rectify
Conflict of Interest by Order. (ECF 51). Matthew contends that it is a
conflict of interest for one law firm to represent all of the defendants as
it prevents one or more of the Defendants from cooperating with him.

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He asks the Court to resolve this conflict. (ECF 51). The Court has not
shown that, in this case, it is a conflict of interest for one firm/attorney
to represent all of the Defendants. The motion will be denied.
Matthew filed a “Motion to File Documents “Witness List’ for the
Court and Defendants.” (ECF 56). The motion will be denied. The
Court does not accept exhibits for filing that are not associated with a
motion. There is no need to file a witness list at this stage of the
litigation.
Matthew filed a motion objecting to Defendants’ expert witness
disclosures and a motion for sanctions based upon these witness
disclosures. ECF 59. Matthew may challenge the expertise of
Defendants’ named experts at trial or in a response to a motion for
summary judgment but the Court will not at this stage of the litigation
strike the expert disclosures and will not issue sanctions.
V. Defendants’ Motions for Sanctions (ECF 52, 53)
Defendants seek Rule 11 sanctions against Matthew for the filing
of his Motion for Equal Treatment (ECF 50) and Motion to Rectify
Conflict of Interest (ECF 51). This request will be denied for failure to

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comply with Rule 11 (c)(2)’s procedural requirements. First, the County
Defendants made their motion for sanctions in conjunction with the
response to Matthew’s motions. A “motion for sanctions must be made
separately.” Fed.R.Civ.P. 11(c)(2). Secondly, Defendants failed to
follow the procedure set forth in Rule 11(c)(2) requiring that a motion
for sanctions be served upon the opposing party and that the opposing
party be allowed 21 days to withdraw or appropriately correct the
challenged filing. Fed.R.Civ.P. 11(c)(2).
Defendants did not comply with these procedures required under
Rule 11. Therefore, the motion will be denied.
VI. Conclusion
Neither party has fully complied with the Court’s local and federal
rules of procedure. The Court may summarily deny future motions that
do not comply with the Court’s Local Rules, including Local Rule 7.1,
and the Federal Rules of Civil Procedure.
Based upon foregoing, the Court issues the following:
ORDER
1. Matthew’s Motion for Injunctive Relief and/or Restraining

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Order (ECF 40) is DENIED;
2. Defendants’ Motion to Dismiss for Failure to state a claim
(ECF 44) is DENIED;
3. Matthew’s Motion for Equal Treatment (ECF 50) is DENIED;
4. Matthew’s Motion to Rectify Conflict of Interest (ECF 51) is
DENIED;
5. Defendants’ Motion for Sanctions (ECF 52) is DENIED;
6. Matthew’s Motion to File Documents (ECF 56) is DENIED;
7. Matthew’s Motion for Restraining Order and Injunctive Relief
(ECF 57) is DENIED;
8. Matthew’s Motion for No Contact Order and Order of Restraint
against Yellowstone County Detention Facility, County, and Staff
therein (ECF 58) is DENIED; and
9. Matthew’s Motion Objecting to Defendants’ Expert Witness
Disclosures and Motion for Sanctions (ECF 59) is DENIED.
DATED this 25th day of January, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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