(PC) L.C. Cunningham v. Martinez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA L.C. CUNNINGHAM, Case No. 1:19-cv-01508-AWI-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTIONS FOR INJUNCTIVE RELIEF BE DENIED M. MARTINEZ, et al., (ECF NOS. 15, 19, & 45) 15 Defendants.

OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 18 L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 20, 2020, the Court allowed this case to proceed on Plaintiff’s claim against Defendant Harmon1 for failure to protect in violation of the Eighth Amendment and on Plaintiff’s claim against Defendant Martinez for violation of the Free Exercise Clause of the First Amendment. (ECF No. 25, p. 2). All other claims and defendants were dismissed. (Id.).

24 On April 23, 2020, Plaintiff filed a motion for a preliminary injunction. (ECF No. 15).

25 On May 28, 2020, Plaintiff filed a motion for a temporary restraining order. (ECF No. 19).

26 Plaintiff has also filed numerous declarations, which he appears to have filed in support of these Plaintiff lists this defendant’s last name as “Harman.” However, according to Defendants, the correct spelling is “Harmon.” (ECF No. 41, p. 1) motion(s). (ECF Nos. 20-24; ECF No. 26; ECF No. 29; ECF Nos. 31-35; ECF Nos. 39-40; ECF No. 45). On December 3, 2020, Defendants filed their opposition to the motions. (ECF No. 47).

3 On January 21, 2021, Plaintiff filed his reply. (ECF No. 53).

4 For the reasons that follow, the Court will recommend that Plaintiff’s motions for injunctive relief be denied.

6 I. SUMMARY OF PLAINTIFF’S MOTIONS 7 Plaintiff generally alleges that Defendants, and other prison officials, are having inmates harass, taunt, annoy, irritate, and threaten him. They accomplished this by informing other inmates that Plaintiff is a snitch; instructing inmates to harass, taunt, and threaten Plaintiff; and paying inmates to harass, taunt, and threaten Plaintiff. While it is not entirely clear, Plaintiff appears to ask the Court to enjoin Defendants (and others) from threatening Plaintiff; from having other inmates threaten and harass Plaintiff; and from informing other inmates that Plaintiff is a snitch. (ECF No. 15, pgs. 1-2; ECF No. 19, pgs. 1-2).

14 II. SUMMARY OF DEFENDANTS’ OPPOSITION 15 Defendants argue that “Plaintiff’s motions should be denied as moot because he transferred to a building where Defendants Harmon and Martinez are not stationed. Additionally, Plaintiff has not demonstrated a likelihood of success on the merits, or a likelihood of irreparable harm. Plaintiff failed to establish that a weighing of the equities tip in his favor. Also, Plaintiff failed to show that a preliminary injunction or temporary restraining order are in the public interest.” (ECF No. 47, pgs. 1-2) (citation omitted).

21 III. LEGAL STANDARDS 22 A federal district court may issue emergency injunctive relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure stating the time within which the party served must appear to defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 1 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,” their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). “When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015).

9 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, and is the least intrusive means necessary to correct the violation of the Federal Right.”

13 On the merits, “[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.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

20 IV. ANALYSIS 21 This case is only proceeding on two claims: 1) Plaintiff’s claim against defendant Harmon for failure to protect in violation of the Eighth Amendment; and 2) Plaintiff’s claim against defendant Martinez for violation of the Free Exercise Clause of the First Amendment.

24 As to Plaintiff’s failure to protect claim against defendant Harmon, the case is proceeding based on Plaintiff’s allegations that on November 11, 2019, defendant Harmon called Plaintiff a snitch, which caused Plaintiff to be harassed by other inmates. (ECF No. 18, pgs. 7-8; ECF No. 25). This case is not proceeding on a failure to protect claim against defendant Martinez.

28 As to Plaintiff’s motion for injunctive relief against defendant Harmon, the Court will recommend that Plaintiff’s motion for injunctive relief be denied because Plaintiff has not established that he is likely to succeed on the merits of his failure to protect claim against defendant Harmon.

4 To establish a failure to protect claim, a prisoner must establish that prison officials were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and objective components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). A prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate ... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 11 837. “Liability may follow only if a prison official ‘knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.’”

13 Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847).

14 The Ninth Circuit has held that telling inmates that someone is a “snitch” with the intent of having an inmate killed by other inmates could state a claim for a violation of the inmate’s right to be protected from violence while in custody. Valandingham v. Bojorquez, 866 F.2d 17 1135, 1138 (9th Cir. 1989) (upholding a failure to protect claim where Plaintiff “alleged that because he had petitioned prison and government officials for redress of his grievances, [Defendants] had conspired to label him a ‘snitch’ and thereby subject him to retaliation by inmates”). The Ninth Circuit has also denied a similar claim when the plaintiff did not allege he was actually subjected to retaliation by fellow inmates, nor that the defendants were aware that their statements exposed the plaintiff to substantial risk of serious harm. Morgan v. MacDonald, 41 F.3d 1291, 1293-94 (9th Cir. 1994).

24 “In general, injunctive relief is to be used sparingly, and only in a clear and plain case,” Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (citation and internal quotation marks omitted), and this is not a clear and plain case. Plaintiff’s only evidence to show that defendant Harmon has/is labeling Plaintiff a snitch and having inmates harass, taunt, annoy, irritate, and threaten him consists of his own declarations and complaints. Plaintiff has submitted no other evidence, such as witness statements, suggesting that defendant Harmon has done so. And, for the most part, Plaintiff’s declarations are conclusory and lack detailed facts. (See, e.g., ECF No. 35, pgs. 1-2 (“I declare that these inmates are torturing me within my cell by calling my name out in a loud noise, telling me I am going to die, by threating my life and safety. I declare that the defendant’s J. Harman, M. Martinez, along with other correctional officers are paying these inmates to inflict these, as well as other threatening acts upon my health and safety. I declare that the defendants are tell these inmates that I am a snitch, and are passing my Confidential paperwork to these inmates so that they will practice these dangerous, and torturous acts upon me.”)).2 10 Moreover, defendant Harmon denies that he has ever “told an inmate or a correctional officer to harass, taunt, or otherwise threaten the safety of L.C. Cunningham. Nor [has he] ever told anyone that L.C. Cunningham is a snitch. [He has] never shared L.C. Cunningham’s confidential paperwork with any inmate.” (ECF No. 47, p. 12).

14 As the Court only has competing declarations, and as Plaintiff’s numerous declarations are largely conclusory and lack detailed facts, the Court is unable to conclude that Plaintiff is likely to succeed on the merits of his claim against defendant Harmon.3 Accordingly, the Court will recommend that Plaintiff’s motion(s) for injunctive relief against defendant Harmon be denied.

18 In his filings, Plaintiff also includes numerous allegations against non-defendants. He also alleges that he is being retaliated against for filing grievances and litigating this action. (See, e.g., ECF No. 22, p. 1). However, as noted above, this case is only proceeding on a failure to protect claim against defendant Harmon and a Free Exercise Clause claim against defendant Martinez. Plaintiff is not entitled to an injunction in this action based on his allegations of retaliation,4 his allegations against non-defendants, or his allegations that defendant Martinez is Errors in original.

3 The Ninth Circuit applies a “sliding scale” approach. “[I]f a plaintiff can only show that there are serious questions going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (citation and internal quotation marks omitted). Here, even if Plaintiff only had to make the lesser showing of “serious questions going to the merits,” the Court would still recommend that Plaintiff’s motion be denied because he has not made this showing.

28 4 The Court notes that even if Plaintiff were entitled to an injunction in this action based on his allegations | failing to protect him. Pac. Radiation Oncology, 810 F.3d at 633 (“When a plaintiff seeks | injunctive relief based on claims not pled in the complaint, the court does not have the authority || to issue an injunction.”). Moreover, an injunction binds only “the parties to the action,” their | “officers, agents, servants, employees, and attorneys,” and “other persons who are in active || concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). Plaintiff does appear to try to tie non- | defendants’ conduct to Defendants by alleging a conspiracy (see, e.g., ECF No. 26, p. 3; ECF No. | 39, p. 2), but Plaintiff has not submitted sufficient evidence to support this contention.

8 Accordingly, the Court will recommend that Plaintiffs motions for injunctive relief be | denied.

10 V. RECOMMENDATIONS 11 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that | Plaintiffs motions for injunctive relief (ECF Nos. 15 & 19) be DENIED.

13 These findings and recommendations are submitted to the United States district judge | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen | (14) days after being served with these findings and recommendations, any party may file written | objections with the court. Such a document should be captioned “Objections to Magistrate | Judge's Findings and Recommendations.” Any reply to the objections shall be served and filed | within seven (7) days after service of the objections. The parties are advised that failure to file || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 | (9th Cir. 1991)).

73 IT IS SO ORDERED.

Dated: _ January 28, 2021 [sf Fahey □ 25 UNITED STATES MAGISTRATE JUDGE that he is being retaliated against for prosecuting this action, Plaintiff has not submitted sufficient evidence to show || that he is being retaliated against because he is prosecuting this action.