(PC) Davis v. Agundez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CORNELL DAVIS, Case No. 1:20-cv-00640-DAD-BAK (EPG) (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. TEMPORARY RESTRAINING ORDER A. AGUNDEZ, et al., ORDER DENYING REQUEST FOR A “SPEEDY JURY TRIAL” 15 Defendants.

ORDER GRANTING IN PART AND 16 DENYING IN PART REQUEST FOR COPIES (Doc. 26) 19 Plaintiff has filed an untitled document on August 30, 2021 (Doc. 26), which the Court construes to be a motion for temporary restraining order, a request for speedy trial, and a request for copies. The Court will recommend Plaintiff’s motion for temporary restraining order be denied. Further, the Court will order Plaintiff’s request for a speedy trial be denied. Finally, Plaintiff’s request for copies will be granted in part and denied in part.

24 I. INTRODUCTION 25 Plaintiff, proceeding pro se, initiated this action on May 6, 2020.1 (Doc. 1.)

26 In his August 30, 2021, filing, Plaintiff contends Kern Valley State Prison authorities have “taken” his “visits” in retaliation a “second time for the same incident denying me the right to keep a healthy relationship and connection to my family.” (Doc. 26 at 1.) Plaintiff contends he is “constantly being targeted, harassed and singled out and deprived of [his] amendments and rights.” (Id.) Plaintiff also requests a “speedy jury trial” and copies of documents he has submitted to this Court and an “immediate response within 14 calendar days.” (Id.) Plaintiff contends he continues to write to the Court “to tell them [to] stop,” and that he needs “a response and a[n] update.” (Id. at 3.)

7 II. MOTION FOR TEMPORARY RESTRAINING ORDER 8 A. Applicable Legal Standard 9 “A preliminary injunction is an extraordinary remedy never awarded as of right.”2 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted).

11 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 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 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.”

24 Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015).

25 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires the Court find that the “relief [sought] is narrowly “The standard for a [temporary restraining order] is the same as for a preliminary injunction.” Rovio Entm’t Ltd. v. 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.”

3 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).

10 B. Relevant Background 11 In the Court’s May 2021 Findings and Recommendations to Dismiss Claims and Defendant, the then-assigned magistrate judge found Plaintiff had stated cognizable claims of excessive force against Defendants Agundez and Urrutia, and a cognizable claim of retaliation against Defendant Dominguez. (Doc. 18 at 7.) The remaining claims were not cognizable, and Plaintiff elected not to amend his pleading. (Id. at 7-8.) Thus, it was recommended Defendant Chavez be dismissed, and that Plaintiff’s complaint be dismissed, “except for the claims of excessive force against Defendants Agundez and Urrutia and the claim of retaliation against Defendant Dominguez, pursuant to 42 U.S.C. § 1983.” (Id. at 8.) On July 11, 2021, District Judge Dale A. Drozd adopted the May 20, 2021, findings and recommendations in full. (Doc. 20.)

20 C. Analysis 21 1. Jurisdictional Issues 22 Plaintiff seeks an order of this Court directing the Kern Valley State Prison not to retaliate against him. (Doc. 26 at 1.) However, Plaintiff does not identify or describe who is retaliating against him. It is unclear whether Plaintiff means the named Defendants in the action (Agundez, Urrutia, or Dominguez) or other unidentified persons at Kern Valley State Prison.

26 In his operative complaint, Plaintiff successfully alleged claims of excessive force against Defendants Agundez and Urrutia, and a claim of retaliation against Defendant Dominguez.

1 claims Plaintiff asserts in the complaint.

2 Additionally, Plaintiff does not describe what any person is doing, why Plaintiff thinks the behavior is retaliation, or what Plaintiff believes any person is retaliating against. Plaintiff’s vague references to “being targeted, harassed and singled out” (Doc. 26 at 1) are insufficient.

5 Plaintiff has not provided any evidence in support of his motion, beyond a letter Plaintiff addressed to the Court. (Doc. 26 at 3.)

7 In the absence of information establishing the Court has both personal jurisdiction and subject matter jurisdiction, emergency injunctive relief is unavailable. See Murphy Bros., Inc., 526 U.S. at 350 (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 must appear to defend”); Hitchman Coal & Coke Co., 245 U.S. at 234-35 ; Pac. Radiation Oncology, LLC, 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”).

14 2. The Merits 15 Plaintiff has not shown that he is likely to succeed on the merits, or that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20.

17 Plaintiff has not shown he is likely to succeed on the merits of his claims. Plaintiff offers nothing to show he is likely to succeed on the merits of his claims; he makes no argument, nor does he offer any exhibit or affidavit in this regard. While the Court has previously found Plaintiff stated cognizable excessive force and retaliation claims against certain Defendants, it did not find a likelihood of success on the merits based on evidence. Moreover, it is not clear if the conduct alleged in Plaintiff’s motion is the same as the claims in the case.

23 Additionally, Plaintiff has made no showing that the balance of equities tips in his favor, nor that the injunction he seeks – “to tell them to stop” – is in the public interest.

25 In sum, Plaintiff fails to meet the criteria required for issuance of a temporary restraining order and the undersigned will recommend the request be denied.

27 III. REQUEST FOR SPEEDY JURY TRIAL & COPIES request to be a request for a speedy trial in this action, versus an underlying criminal action.3 Plaintiff is advised the Sixth Amendment to the United States Constitution affords that criminal defendants have the right to a speedy and public trial. Will v. United States, 389 U.S. 90, 96-98 (1967) (defendant in a criminal case is entitled to speedy resolution of charges against him); see e.g., United States v. Griffin, 464 F.2d 1352, 1354 (9th Cir. 1972) (“the Sixth Amendment guarantees do not extend to persons who do not stand ‘accused’ of any crime’). Therefore, the Sixth Amendment provides no basis for Plaintiff’s request in this civil case filed pursuant to 42 8 U.S.C. § 1983. Nor would the Federal Speedy Trial Act, 18 U.S.C. § 3161 et seq., as that statute also applies to criminal prosecutions rather than a civil case filed pursuant to 42 U.S.C. § 1983.

10 See United States v. Forty Thousand Dollars ($40,000.00) in U.S. Currency, 763 F. Supp. 1423, 1429 (S.D. Ohio 1991) (“[t]he Sixth Amendment right to a speedy trial” and “the Speedy Trial Act, 18 U.S.C. § 3161 et seq. appl[y] only to criminal prosecutions”). Therefore, Plaintiff’s request for a “speedy jury trial” will be denied.

14 Plaintiff also seeks “a copy of all [his] letters [he] has sent for legal purposes” because “the police threw ‘em away or something when [he] went in the hole May 6, 2021.” (Doc. 26 at 3.)

17 The Clerk of the Court does not ordinarily provide free copies of case documents to parties. The Clerk charges $.50 per page for copies of documents. See 28 U.S.C. § 1914(a).

19 Copies of up to twenty pages may be made by the Clerk’s Office at this Court upon written request and prepayment of the copy fees. Nevertheless, in this instance, the Court will direct the Clerk of the Court to send Plaintiff a copy of his complaint (Doc. 1), the Findings and Recommendations to Dismiss Claims and Defendant (Doc. 18), Order Adopting Findings and Recommendations (Doc. 20), and the Discovery and Scheduling Order (Doc. 35).

24 IV. RECOMMENDATION AND ORDER 25 For the reasons set forth above, the Court RECOMMENDS Plaintiff’s motion for temporary restraining order (Doc. 26) be denied.

1 These Findings and Recommendations will be submitted to the district judge assigned to | this case, pursuant to the provisions of 28 U.S.C. section 636(b)(). Within 14 days of the date of | service of these Findings and Recommendations, Plaintiff may file written objections with the | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and | Recommendations.”

6 Further, the Court ORDERS as follows: 7 1. That Plaintiff's request for a “speedy jury trial” (Doc. 26) be DENIED; and 8 2. That Plaintiff's request for copies of documents he has sent to the Court in this action 9 (Doc. 26) be GRANTED in part and DENIED in part. The Clerk of the Court shall 10 send Plaintiff a copy of his complaint (Doc. 1), the Findings and Recommendations to 11 Dismiss Claims and Defendant (Doc. 18), Order Adopting Findings and 12 Recommendations (Doc. 20), and the Discovery and Scheduling Order (Doc. 35).

4 IT IS SO ORDERED.

15 | Dated: _March 23, 2022 [sf ey — 16 UNITED STATES MAGISTRATE JUDGE