Lovelady v. Dr. Beamer et al

Filing 96

OPINION & ORDER: Lovelady's Motion for Reconsideration 73 is Denied as Moot, Defendants' Motion for Summary Judgment 74 is Granted in its entirety, and Lovelady's Motion for Imposition of Sanctions 91 is Denied. Signed on 10/19/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JEREMY JAY LOVELADY,
Plaintiff,
2:16-CV-1614-PK
OPINION AND
ORDER

v.

DR. BEAMER, MS. WETTLAUGHER,
and MS. GARTON,
Defendants.
PAPAK, Magistrate Judge:
Incarcerated plaintiff prose Jeremy Ray Lovelady filed this action against defendants Dr.
Beamer (identified by defendants as Leland Beamer), Ms. Wettlaugher (identified by defendants
as Dorothy Wettlaufer and referred to herein as "Wettlaufer")), and Ms. Garton (identified by
defendants as Jaylene Gatton) on August 9, 2016. By and tlu·ough his complaint, Lovelady
alleged all defendants' liability under 42 U.S.C. § 1983 for the violation of his Eighth
Amendment right to freedom from cruel and unusual punishment in connection with defendants'
provision of health care to him while he was incarcerated at the Eastem Oregon Correctional
Institution ("EOCI"), and Beamer's liability under Oregon law for negligence in connection with
Beamer's provision of health care to him while he was incarcerated at EOCI. This comt has

Page 1 - OPINION AND ORDER

federal-question jurisdiction over Lovelady's Section 1983 claims pursuant to 28 U.S.C. § 1331,
and may properly exercise supplemental jurisdiction over Lovelady's negligence claim pursuant
to 28 U.S.C. § 1367.
On May 17, 2017, I granted summary judgment in defendants' favor as to Lovelady's
Section 1983 claims against Beamer and Wettlaufer due to Lovelady's failure to exhaust
administrative remedies in connection with those claims as required under the Prison Litigation
Refo1m Act, which failure deprived this court of jurisdiction to consider those claims as a matter
of law. By and through the same Opinion and Order, I additionally denied Lovelady's motion
(#4) for a preliminary injunction, on the ground that the requested injunction to require
defendants Beamer and Gmton to provide him with appropriate medical cme would not be
effective because Lovelady was not, as of May 17, 2017, housed at EOCI where Beamer and
Garton were employed.'
Now before the court are Lovelady's motion (#73) for reconsideration of my disposition
of his motion for a preliminary injunction, Beamer's and Garton's motion (#74) for summmy
judgment as to Lovelady's remaining claims against them, and Lovelady's motion (#91) for
imposition of sanctions against defendants and their attorneys pursuant to Federal Civil
Procedure Rule 11 for purportedly knowingly submitting false evidence to the court. I have
considered the motions and all of the pleadings and papers on file. For the reasons set forth
below, Lovelady's (#73) motion for reconsideration is denied as moot, defendants' motion (#74)
for summmy judgment is granted, and Lovelady's motion (#91) for imposition of sanctions is

1

As will be discussed below, the factual premise underlying my disposition of
Lovelady's motion (#4) for a preliminary injunction was inc01Tect. As of May 17, 2017,
Lovelady was housed at EOCI.
Page 2 - OPINION AND ORDER

denied.

LEGAL STANDARDS
I.

Motion for Reconsideration
Federal Civil Procedure Rule 59(e) provides statutmy authority for the district courts to

consider a patty's motion to alter or amend a judgment. See Fed. R. Civ. P. 59(e). Such a motion
may appropriately be granted where "the district comt (1) is presented with newly discovered
evidence [or] (2) committed clear error or the initial decision was manifestly unjust, or (3)
[where] there is an intervening change in controlling law." Id. at 1263. However, "[t]here may
also be other, highly unusual, circumstances wananting reconsideration in addition to the
foregoing." Id.

II.

Motion for Summary Judgment
Summaty judgment is appropriate "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). A patty taking the position that a material fact either "cannot be or is genuinely disputed"
must support that position either by citation to specific evidence of record "including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatmy answers, or other
materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing patty is unable to produce sufficient
admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c).
The substantive law governing a claim or defense determines whether a fact is material. See
lvforelandv. Las Vegas Jvfetro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

Page 3 - OPINION AND ORDER

Summaty judgment is not proper if material factual issues exist for trial. See, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the
United States must draw all reasonable inferences in favor of the nonmoving patty, and may
neither make credibility detenninations nor perform any weighing of the evidence. See, e.g.,

Lytle v. Household lvfjg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).

III.

Motion for Imposition of Sanctions Pursuant to Federal Civil Procedure Rule 11
Federal Civil Procedure Rule l l(c)(l) provides that the federal courts may impose

appropriate sanctions on any attorney or party who, "after notice and an oppottunity to respond,"
violates any of the provisions of Federal Civil Procedure Rule 1 l(b). Fed. R. Civ. P. l l(c)(l). A
party moving for sanctions under Federal Civil Procedure Rule l l(c) must serve the motion on
the patty against whom sanctions are sought, and then may file the motion with the cou1t any
time following 21 days after service if the allegedly noncompliant filing is not withdrawn or
otherwise appropriately corrected within that period. See Fed. R. Civ. P. l l(c)(2). Any sanction
imposed pursuant to Rule 11 (c) "must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated." Fed. R. Civ. P. 1 l(c)(4). Attorney
fees may be awarded as a sanction under Rule 11 (c) "if imposed on motion and warranted for
effective deterrence," but must be limited to the fees and other expenses "directly resulting from
the violation." Id. Rule l l(b) provides as follows:
By presenting to the court a pleading, written motion, or other paper by signing, filing, submitting, or later advocating it - an attorney or
Page 4 - OPINION AND ORDER

whether

unrepresented party certifies that to the best of the person's knowledge,
information, and belief, f01med after an inquiry reasonable under the
circumstances:
(1)

it is not being presented for any improper purpose, such as to
harass, cause unnecessmy delay, or needlessly increase the cost of
litigation;

(2)

the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;

(3)

the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentimy support after a reasonable
opportunity for further investigation or discovery; and

(4)

the denials of factual contentions are WatTanted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack
of information.

Fed. R. Civ. P. ll(b).
The comis have discretion to award a patiy prevailing on a Rule 11 (c) motion its
reasonable expenses, including attorney fees, incmTed in connection with the motion, where such
an award would be "warranted." Fed. R. Civ. P. 1l(c)(2). The burden of establishing that
sanctions are justified is borne by the party moving for imposition of sanctions. See Tom
Growney Equip. v. Shelley Irrigation Dev., 834 F.2d 833, 837 (9th Cir. 1987).

FACTUAL BACKGROUND
I previously had occasion, in my Opinion and Order (#71) dated May 17, 2017, to set
forth all of the facts material to the patties' dispute. As the parties are familiar with those facts,
and because the motions now before the court do not require consideration of all of the facts
underlying the parties' dispute, I recite herein only those facts material to the motions now before
the court.
Page 5 - OPINION AND ORDER

I.

The Parties
Plaintiff Lovelady is an incarcerated prisoner who at all material times was housed at the

Eastern Oregon Correctional Institution. Between June 28, 2016, and Janumy 24, 2017,
Lovelady was housed at the Oregon State Penitentiary. Lovelady returned to EOCI on Janumy
24, 2017, and has been housed there continuously since that date.
Defendant Beamer is a physician employed by EOCI. Beamer provided medical care to
Lovelady during the material period from October 2014 through June 2016. It is Lovelady's
position that Beamer was negligent in connection with his provision of medical care to Lovelady
in the course of his employment as an EOCI physician. Lovelady's negligence claim is premised
in its entirety on that purported negligence.
Defendant Gmion is the outside medical coordinator at EOCI. It is Lovelady's position
that, out of deliberate indifference to Lovelady's serious medical needs, Gardner falsified
Lovelady's medical records to create the appearance that a March 6, 2015, MRI study of
Lovelady's cervical spine was sent to outside medical provider Kadlec Neuroscience ("Kadlec")
on or around March 31, 2015, when in fact the MRI study was not forwarded to Kadlec until
September 11, 2015, causing delay in Lovelady's receipt of necessaty medical care. Lovelady's
Eighth Amendment claim against Garton is premised in its entirety on Gmion's purpotied
conduct in so falsifying Lovelady's medical records.

II.

Facts Material to the Motions Now Before the Court2
Defendants proffer the testimony of defendant Garton that Lovelady underwent an MRI

2

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentiary record in light of the legal standard governing motions for summmy judgment
under Federal Civil Procedure Rule 56.
Page 6 - OPINION AND ORDER

study of his cervical spine on March 6, 2015. See Declaration (#75) of Jaylene Garton ("Gatton
Deel."), iJ 4, Exh. 2 at 5. Garton further testifies that, on March 31, 2015, "Dr. Timothy Kelly
ordered that the cervical MRI repo1t be sent to Kadlec Neuroscience." Id.,

iJ 5.

Garton further

testifies that on that same date, March 31, 2015, she "sent the MRI rep01t to Kadlec using an
electronic transfer 'push' which also sent the MRI images to Kadlec," and that the electronic
transfer method was used in order to effect the immediate transfer of the MRI study to the
physicians as Kadlec. Id. Gatton further testifies that, also on that same date, she made a
notation in Lovelady's medical records as follows: "had [Saint Anthony's Hospital] push over cspine MRI to Kadlec Neuroscience and they will fax over repo1t for Dr. Baldwin to review." Id.
Gatton fmther testifies that on April 5, 2015, EOCI medical staff responded to an inmate
communication from Lovelady asking about the status of his MRI study, indicating that the study
had been sent to Kadlec on March 31, 2015, and that EOCI medical staff were awaiting a reply
from Kadlec. See id, iJ 6, Exh. 2 at 6. Garton fmther testifies that on April 6, 2015, EOCI
medical staff responded to an inmate grievance filed by Lovelady indicating that EOCI medical
staff were awaiting recommendations from Kadlec following Kadlec's review ofLovelady's MRI
repmt. See id, iJ 7, Exh. 3.
Gatton fuither testifies that she spoke with Kadlec staff on May 5, 2015, who advised her
that the Kadlec neurologist's sole recommendation following review of Lovelady's MRI was
physical therapy. See id, iii! 8-9. Garton further testifies that, on May 7, 2015, she relayed the
recommendation to EOCI physician Timothy Kelly, and that Kelly wrote an order for Lovelady
to undergo physical therapy. See id, iJ 9, Exh. 2 at 1. Garton further testifies that, also on May 7,
2015, she recorded her conversation with Kadlec staff, including a description ofKadlec's

Page 7 - OPINION AND ORDER

recommendations, in Lovelady's medical records. See id.,

if 9, Exh. 2 at 3.
Garton further testifies that she dis not falsify or improperly alter any ofLovelady's EOCI
medical records. See id., if 10.
Lovelady proffers evidence in purported support of the proposition that, notwithstanding
Garton's sworn testimony, his MRJ study of March 6, 2015, was not sent to Kadlec until
September 11, 2015. First, Lovelady proffers his own testimony that Garton's chart note of May
7, 2015, purporting to describe Kadlec's recommendations following review of the MRI study of
March 6, 2015, was a falsification in that "Kadlec never received the MRJ ... for another four
months after" the date Garton added the chatt note. Declaration (#92) of Jeremy Ray Lovelady
("Lovelady Deel."),

i!il 9-10.

Second, Lovelady notes that Kadlec's records indicate that on

September 11, 2015, Kadlec "[r]eceived updated referral chart notes for [Lovelady] to followup
on care." Complaint, Exh. 33.
ANALYSIS

Following award of summary judgment in defendants' favor on May 17, 2017, as to
Lovelady's Eighth Amendment claims against defendants Beamer and Wettlaufer, Lovelady
proceeds in this action with his Eighth Amendment claim against defendant Gatton and his
Oregon common-law negligence claim against Beamer. Beamer and Gatton now move for
summmy adjudication of those remaining claims.
Lovelady opposes defendants' motion for summaty judgment in its entirety. In addition,
Lovelady moves for imposition of sanctions against defendants and their counsel for their
reliance on evidence purpottedly fabricated by Garton in support of their motion for summary

Page 8 - OPINION AND ORDER

judgment. Finally, Lovelady moves for reconsideration of my disposition of his motion (#4) for
a preliminary injunction of May 17, 2017.

I.

Defendants' Motion (#74) for Summary Judgment
A.

Lovelady's Eighth Amendment Claim against Garton

As noted above, Lovelady's Eighth Amendment claim against Garton is premised solely
on Gmion's purported conduct in falsifying Lovelady's medical records to create the appearance
that Lovelady's MRI study of March 6, 2015, was sent to Kadlec as of March 31, 2015, whereas
in fact it was not sent to Kadlec until September 11, 2015. Also as noted above, both sets of
parties have submitted evidence that they assert is material to the question whether the chart note
Garton added to Lovelady's medical records on May 7, 2015, indicating that Kadlec had made
medical recommendations based on review ofLovelady's MRI study as of May 5, 2017, was or
was not fabricated.
Notwithstanding the foregoing, Lovelady has not offered evidence with any tendency to
establish that the chati note of May 7, 2015, was fabricated or otherwise contained any
misrepresentation of fact. First, while Lovelady expressly testifies both that he "has submitted
documents proving that the defendant[]s have falsified the plaintiff's institutional progress notes,"
Lovelady Deel., if 5, and that Garton "altered" his medical records by falsely stating that Kadlec
had made medical recommendations based on review ofLovelady's MRI study as of May 5,
2017, id, ilil 6-7, nothing in his testimony or elsewhere in the record suggests that Lovelady had
personal knowledge of the events to which he testifies, or explains how he could have learned
that Garton's note of May 7, 2015, was inaccurate. As such, this comi may properly disregard
Lovelady's testimony to the extent it describes events beyond his personal knowledge without

Page 9 - OPINION AND ORDER

indication of how he learned that they occutTed. See, e.g., SEC v. Phan, 500 F.3d 895, 909-910
(9th Cir. 2007), quoting Villiarimo v. Aloha Island Air, Inc., 281F.3d1054, 1059, 1059 n. 5 (9th
Cir. 2002). Moreover (as discussed below in connection with the single document Lovelady
identifies with particularity as having material probative value), none of the documents Lovelady
has submitted have any tendency to "prov[e]" that Garton's chatt note was in any degree
inaccurate.
Second, the Kadlec record indicating that on September 11, 2015, Kadlec received
Lovelady's "updated referral chart notes" lacks any tendency to support the conclusion that
Kadlec additionally received a copy ofLovelady's MRI study on that same date. To the contrary,
the fact that Kadlec recorded receipt of updated chart notes without recording receipt of the MRI
study strongly supports the contraty conclusion that Kadlec did not receive the MRI study on that
date.
By contrast, defendants have proffered competent evidence, described above, tending to
establish that Gmton's chart note of May 7, 2015, was accurate. See Gatton Deel., ilil 5-10. Had
Lovelady submitted competent evidence probative of his position, this court would be required to
resolve the conflict between his proffered evidence and defendants' in his favor for purposes of
determining the merits of defendants' pending motion (#74) for summaty judgment. In the
absence of any evidence probative ofLovelady's position, however, the evidence of record
unambiguously indicates that Garton did not falsify the chart note of May 7, 2015. In
consequence, I cannot find on the evidence of record that Gmton's complained-of conduct could
have caused the complained-of delay in Gatton's receipt of medical care, and no grounds exist for
holding Garton liable under Section 1983 for the violation ofLovelady's Eighth Amendment

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rights. Defendants' motion (#74) for summary judgment is therefore granted as to Lovelady's
Eighth Amendment claim against defendant Garton.
B.

Lovelady's Negligence Claim against Beamer

Lovelady alleges Beamer's liability under Oregon common law for negligence in
connection with Beamer's provision of medical services to Lovelady while Lovelady was
incarcerated at EOCI. Defendants are entitled to summaty judgment in their favor as to this
claim, because under the Oregon Tort Claims Act (the "OTCA"), the State of Oregon must be
substituted for Beamer as the defendant in connection with Lovelady's negligence claim, and
under the Eleventh Amendment the State of Oregon is immune from suit in federal comt in
connection with such claims.
The OTCA provides, in relevant part, as follows:
(1)

Subject to the limitations of ORS 30.260 to 30.300 [i.e., the OTCA],
every public body is subject to civil action for its torts and those of its
officers, employees and agents acting within the scope of their
employment or duties, whether arising out of a governmental or
proprietmy function or while operating a motor vehicle in a ridesharing
arrangement authorized under ORS 276.598.

(2)

The sole cause of action for a tort committed by officers, employees or
agents of a public body acting within the scope of their employment or
duties and eligible for representation and indemnification under ORS
30.285 or 30.287 is an action under [the OTCA]. The remedy provided
by ORS 30.260 to 30.300 is exclusive of any other action against any such
officer, employee or agent of a public body whose act or omission within
the scope of the officer's, employee's or agent's employment or duties gives
rise to the action. No other form of civil action is permitted.

(3)

If an action under ORS 30.260 to 30.300 alleges damages in an

amount equal to or less than the damages allowed under ORS 30.271,
30.272 or 30.273, the sole cause of action for a tort committed by
officers, employees or agents of a public body acting within the scope
of their employment or duties and eligible for representation and
indemnification under ORS 30.285 or 30.287 is an action against the
Page 11 - OPINION AND ORDER

public body. If an action is filed against an officer, employee or agent
of a public body, and the plaintiff alleges damages in an amount equal
to or less than the damages allowed under ORS 30.271, 30.272 or
30.273, the court upon motion shall substitute the public body as the
defendant. Substitution of the public body as the defendant does not
exempt the public body from making any report required under ORS
742.400.
(4)

If an action under ORS 30.260 to 30.300 alleges damages in an amount
greater than the damages allowed under ORS 30.271, 30.272 or 30.273,
the action may be brought and maintained against an officer, employee or
agent of a public body, whether or not the public body is also named as a
defendant. An action brought under this subsection is subject to the
limitations on damages imposed under ORS 30.271, 30.272 or 30.273, and
the total combined amount recovered in the action may not exceed those
limitations for a single accident or occurrence without regard to the
number or types of defendants named in the action.

Or. Rev. Stat.§ 30.265(1)-(4) (emphasis supplied). Here, although Lovelady brings his claim
against Beamer in both his official and his individual capacities, the evidence of record tends to
establish that at all material times Beamer was acting, negligently or otherwise, within the course
and scope of his employment for EOCI and the Oregon Depaitment of C01Tections, and no
evidence of record or any allegation of Lovelady's complaint suggests to the contra1y. In
addition, it is clear that Lovelady has not alleged damages in excess of those allowed under Or.
Rev. Stat.§§ 30.271-30.273. See Complaint at 18-19. It follows that, under the OTCA, the only
appropriate defendant in connection with Lovelady's negligence claim is the public body by
which Beamer was at all material times employed. See Or. Rev. Stat.§ 30.265(1)-(4). ODOC
must therefore be substituted for Beamer as the defendant in connection with Lovelady's
negligence claim.
ODOC, as an ann of the State of Oregon, enjoys Eleventh Amendment immunity from
suit in federal court (although not in state court) in connection with Lovelady's negligence claim.

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The Eleventh Amendment (as constrned in applicable Supreme Court jurisprudence) bars
citizens from bringing suit against a state of the United States in any federal court unless the
immunity it provides is either abrogated by Congress or expressly waived by the state. See, e.g.,

Seminole Tribe ofFlorida v. Florida 517 U.S. 44, 54-56 (1996). While the State of Oregon has
expressly waived its sovereign immunity in connection with tort claims brought in state comt by
and though the OTCA, see Or. Rev. Stat. 30.265(1), it is clear that the OTCA contains no express
waiver of Eleventh Amendment immunity from suit in federal court, see id., and, further, that
waiver of sovereign immunity which does not include express waiver of Eleventh Amendment
immunity is not effective to waive Eleventh Amendment immunity from suit in federal comt.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 9 (1984) (a state's general
waiver of sovereign immunity in its own comis is not a waiver of Eleventh Amendment
immunity to suit in federal court); Estate ofPond v. Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or.
2004) ("The [OTCA] is a waiver of sovereign immunity but does not waive Eleventh
Amendment immunity. Thus, suits by private patties against the state must be brought in state
comt. "). There is no argument or evidence to suggest that the State of Oregon has othe1wise
waived Eleventh Amendment immunity for purposes of negligence claims such as Lovelady's, or
that Congress could have abrogated Eleventh Amendment immunity for such claims. It follows
that neither ODOC nor any of its employees is subject to suit in this court in connection with
Lovelady's negligence claim (although Lovelady would not be bmTed by Eleventh Amendment
immunity from pursuing such a claim in state court). In consequence, defendants' motion (#74)
for summmy judgment is granted as to Lovelady's negligence claim against Beamer.

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II.

Lovelady's Motion (#91) for Imposition of Sanctions
As noted above, Lovelady's motion (#91) for imposition of sanctions is premised entirely

on defendants' reliance on evidence that Garton accurately recorded on May 7, 2015, that on May
5, 2015, Kadlec staff advised her that a Kadlec neurologist had recommended physical therapy
for Lovelady following review of his MRI study of March 6, 2015. As discussed above, there is
no support in the record for the proposition that defendants' reliance on that evidence was in any
way misplaced or otherwise improper. As such, no grounds exist for imposing sanctions on
defendants or their counsel.
Moreover, as noted above, Rule 11 provides that, when an attorney signs, files, or
advocates a legal memorandum, that attorney certifies that the arguments contained therein are
not presented for any improper purpose, that those legal arguments are nonfrivolous, and that
factual contentions contained therein are supported by available evidence. See Fed. R. Civ. P.

l l(b). Rule l l(c) requires that a party moving for sanctions under Rule 11 serve the motion on
the party against whom sanctions are sought, and then provide that party 21 days following
service of the motion within which to co11"ect the putatively sanctionable filing before filing the
motion with the court. See Fed. R. Civ. P. 1l(c)(2). In Barber v. lvfiller, 146 F.3d 707 (9th Cir.
1998), the Ninth Circuit quoted the Adviso1y Committee Notes to the amendments that created
these procedural requirements as follows:
These provisions are intended to provide a type of "safe harbor" against motions
under Rule 11 in that a pmiy will not be subject to sanctions on the basis of
another party's motion unless, after receiving the motion, it refosed to withdraw
that position or to acknowledge candidly that it does not currently have evidence
to support a specified allegation. Under the f01mer rule, parties were sometimes
reluctant to abandon a questionable contention lest that be viewed as evidence of a
violation of Rule 11; under the revision, the timely withdrawal of a contention
will protect a party against a motion for sanctions.
Page 14 - OPINION AND ORDER

Barber, 146 F.3d at 710, quoting Fed. R. Civ. P. 11; Adv. Comm. Notes, 1993 Amend.
Moreover, the Ninth Circuit further quoted the Adviso1y Committee Notes in support of the
conclusion that only formal service of the motion that the moving party intends to file with the
court in the event the putatively sanctionable filing is not withdrawn may trigger the begiffiling of
the 2 I-day period:
To stress the seriousness of a motion for sanctions and to define precisely the
conduct claimed to violate the rule, the revision provides that the "safe harbor"
period begins to run only upon service of the motion. In most cases, however,
counsel should be expected to give informal notice to the other party, whether in
person or by a telephone call or letter, of a potential violation before proceeding to
prepare and serve a Rule 11 motion.
Id., quoting Fed. R. Civ. P. 1 I; Adv. Comm. Notes, 1993 Amend. As the Barber court
concluded, "[i]t would therefore wrench both the language and purpose of the amendment to the
Rule to permit an informal warning to substitute for service of a motion." Id. It follows that this
court is without authority to impose sanctions pursuant to Rule ll(c) absent the moving party's
full compliance with the "safe harbor" provisions of the rule. See, e.g., Radcliffe v. Rainbm11
Constr. Co., 254 F.3d 772, 788-789 (9th Cir. 2001) (reversible error for a district court to award
sanctions pursuant to Rule 11 (c) on a party's motion that was not strictly compliant with the
procedural requirements of the rule). Because Lovelady did not serve defendants with his motion
at least 21 days prior to filing it with the court, even if he had accurately identified sanctionable
conduct on the pmt of any defendant or of defendants' counsel his sanctions motion would
necessarily be denied as procedurally noncompliant. See id.
For all of the foregoing reasons, Lovelady's motion (#91) for imposition of sanctions is
denied.

Page 15 - OPINION AND ORDER

III.

Lovelady's Motion (#73) for Reconsideration
As noted above, on May 17, 2017, I denied Lovelady's motion (#4) for a preliminaty

injunction on the ground that the requested injunction would necessarily be ineffective, in that
Lovelady was not at the time housed in an institution where Beamer or Garton were employed,
such that even if enjoined to provide him with adequate medical care they would be unable to do
so. Lovelady correctly notes that the factual premise underlying my disposition was inc01Tect,
and that, in fact, at the time my order issued, he was housed at EOCI, where both Beamer and
Garton were employed.
Notwithstanding the foregoing, because it is established that Lovelady has no valid claim
over which this court may properly exercise jurisdiction against any named defendant herein, no
grounds exist for granting Lovelady's motion for a preliminary injunction. This is because the
purpose of preliminaty injunctive relief is to either preserve the status quo or to prevent
irreparable injmy pending resolution of an underlying cause of action, and the federal courts lack
authority to issue injunctions addressing matters outside the scope of pending claims. See, e.g.,
Sierra On-line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); De Beers
Consol. },;fines, Ltd. v. United States, 325 U.S. 212, 220 (1945). This court therefore lacks
authority to grant Lovelady's motion (#4) for a preliminaty injunction. It follows that Lovelady's
motion (#73) for reconsideration of my disposition of that motion is moot following resolution of
defendants' motion (#74) for summaty judgment in defendants' favor. Lovelady's motion (#73)
for reconsideration is therefore denied as moot.

CONCLUSION
For the reasons set forth above, Lovelady's motion (#73) for reconsideration is denied as

Page 16 - OPINION AND ORDER

moot, defendants' motion (#74) for summary judgment is granted in its entirety, and Lovelady's
motion (#91) for imposition of sanctions is denied.
Dated this 19th day of October, 2017.

Honorable Paul Papak
United States Magistrate Judge

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