Hinkley v. Jessee et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND AFFIRMING ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL for 19 Report and Recommendations. 4 Motion for TRO, filed by James Mark Hinkley, and 5 Motion for Preliminary Injunction,, Motion for TRO,, Motion to Appoint Counsel, filed by James Mark Hinkley are DENIED. Signed by Judge Thomas O. Rice. (MF, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JAMES HINKLEY,
NO: 4:14-CV-5117-TOR

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Plaintiff,
vs.
SGT KIRK JESSEE, ROD
SHUMATE, RON KNIGHT,
(UNKNOWN) ANSORGE,
(UNKNOWN) SHATTO, and
(UNKNOWN) ALLEN,

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ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING
MOTIONS FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION, AND
AFFIRMING ORDER DENYING
MOTIONS FOR APPOINTMENT OF
COUNSEL

Defendants.

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BEFORE THE COURT is Magistrate Judge Hutton’s Report and

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Recommendation to Deny Motions for Temporary Restraining Order and

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Preliminary Injunction (ECF No. 19). Plaintiff, a prisoner at the Monroe

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Correctional Complex, is proceeding pro se and in forma pauperis; Defendants

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have not yet been served.

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Plaintiff has filed three sets of Objections (ECF Nos. 20, 21 and 23) as well
as “New Evidence” (ECF No. 22). Plaintiff’s complaint is based on claims of

ORDER ADOPTING REPORT AND RECOMMENDATION ~ 1

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retaliation against Defendants Jessee, Shumate, Knight, Ansorge, Shatto and Allen,

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arising in the Spring and Summer of 2013. Plaintiff has failed to allege any facts

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from which the Court could infer a causal link between his protected activities in

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2013 and actions allegedly taken against Plaintiff by persons who are not

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Defendants to this action.
Plaintiff seeks broad injunctive relief. He asks this Court to “stop 1- all

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retaliation for using legal remedies/grievances[;] 2- all abusive cell searches that

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violate policy[; and] all targeting of inmates staff don’t like.1” (ECF No. 23 at 2).

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Once again, Plaintiff’s concerns are speculative. He has made no showing that he

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is in danger of being subjected to anything in violation of his federally protected

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rights, which would warrant the extraordinary remedy of a temporary restraining

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order or preliminary injunction at this time. 18 U.S.C. § 3626(a)(1)(A).

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During the drafting of this Order, the Court received notice that Plaintiff has been

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moved to the Minimum Security Unit of the Monroe Correctional Complex. Any

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claim for injunctive relief at the Washington State Penitentiary would be Error!

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Main Document Only.rendered moot by his transfer out of that facility. See Dilley

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v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (stating that an inmate's transfer from

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an institution while his claims are pending will generally moot any claims for

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injunctive relief relating to the prison's policies).

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In his document titled, “New Evidence for TRO, Preliminary Injunction and

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Motion to Appoint Counsel, Request for Court Action” (ECF No. 22), Plaintiff

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asserts that in December 2014, he was fired from his kitchen job and, along with

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four other inmates, was infracted for stealing food. Plaintiff complains that Sgt.

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Bellinger informed Plaintiff that he could never work in the kitchen again. Plaintiff

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contends that the other involved inmates received only a one to two year ban.

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Plaintiff’s assertion that Sgt. Bellinger banned him “because staff resent

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[Plaintiff] for using [his] legal remedy to grieve there [sic] buddies,” is

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unsupported by any factual allegations. Plaintiff presents nothing, apart from his

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bare conclusions, linking this alleged ban by Sgt. Bellinger to his prior protected

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activities against Defendants named in this action. Whether Plaintiff will actually

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be banned from working in the kitchen longer than other inmates is too speculative

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to address at this time. Plaintiff has already indicated that other initial decisions

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(i.e. permission to file for a hobby permit) have been altered. This claim is pre-

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mature.

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In any event, a prisoner must complete the administrative review process in

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accordance with the applicable rules, prior to submitting his complaint. Woodford

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v. Ngo, 548 U.S. 81, 92 (2006). Under Woodford, there must be proper exhaustion,

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which means following the steps set out in the grievance procedure. Id. A claim of

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ORDER ADOPTING REPORT AND RECOMMENDATION ~ 3

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retaliation is not a bootstrap to bring in any incident occurring after the filing of a

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Complaint.

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Having reviewed the record and Plaintiff’s latest submissions, IT IS

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ORDERED the Report and Recommendation (ECF No. 19) is ADOPTED in its

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entirety and the Motions for Temporary Restraining Order (ECF No. 4) and for

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Preliminary Injunction (ECF No. 5) are DENIED. If Plaintiff believes that he has

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been subjected to additional acts of retaliation, he is free to file a separate action

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once he has exhausted all administrative remedies.

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Plaintiff also appears to be attempting to “object” (ECF No. 21) to the Order

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denying his motions for appointment of counsel. The Court finds no exceptional

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basis to modify that Order. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Therefore, IT IS ORDERED that the Order denying motions for appointment of

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counsel (ECF No. 17) is affirmed. The Court does not engage in investigatory

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activities, and therefore, declines Plaintiff’s request to conduct an independent

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investigation.

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IT IS SO ORDERED. The District Court Executive is directed to enter this

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Order and forward a copy to Plaintiff.

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DATED March 20, 2015.

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THOMAS O. RICE
United States District Judge

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