Moore v. Palmer

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA JOSEPH C. MOORE, Case No.: 22-CV-539 JLS (LR) 12 Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY M. PALMER, Deputy Warden; INJUNCTION D. LEWIS, Associate Warden; A. TAYLOR; A MEZA; R. CENTENO; (ECF No. 15) and CHRISTOPHER DAUB, 17 Defendants.

20 Plaintiff Joseph C. Moore (“Plaintiff” or “Moore”), currently incarcerated at R.J.

21 Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding with a civil action pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). On October 11, 2022, Plaintiff filed a Motion for Preliminary Injunction. See ECF No. 15 (“PI Mot.”). Plaintiff requests an injunction directing Defendants, who are prison officials at RJD, to assign her1 Plaintiff is a transgender woman and refers to herself using she/her pronouns in her Complaint and other pleadings; the Court will do the same in this Order.

1 to single cell housing. PI Mot. at 10. For the reasons discussed below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s PI Motion.

3 BACKGROUND 4 Plaintiff, a transgender woman, was transferred to RJD, a “designated hub” for housing transgender inmates, in February 2018. Compl. at 11. In her Complaint, Moore alleges that, upon her arrival at RJD, she informed her correctional counselor that she wanted a single cell to “avoid any future harassment or assault attempts by other inmates.”

8 Id. at 12. At the classification hearing, however, Moore was assigned a double cell. Id. 9 Inmate M. was assigned as Moore’s cellmate. Id. at 12–13. On March 8, 2018, Moore alleges “Inmate M. forced her to perform a sexual act on [him] in the middle of the night.” Id. at 13. Moore reported the incident to correctional staff under the Prison Rape Elimination Act (“PREA”) and was interviewed by the Investigative Services Unit about the incident. Id. Prison officials ultimately found Moore’s PREA claim “unsubstantiated.”

14 Id. 15 Moore again sought single-cell housing “to protect her from any further abuse or harassment.” Id. at 13. During the next two years, Moore alleges she was “forced . . . to live with numerous . . . inmates who were mentally challenged and had histories of violence.” Id. She alleges that “some of those inmates tried to have sex with [her] or harassed her by making comments when she undressed or used the restroom.” Id. at 13.

20 Moore alleges this happened “from 2018 through 2020 and once in 2021.” Id. 21 In August 2020, Moore again requested a single cell. Id. at 14. Defendant Centeno interviewed Moore; reviewed her file, which included the 2018 PREA allegations; but ultimately declined to recommend Moore for a single cell. Id. Defendant Taylor “endorsed” Centeno’s decision. Id. On September 3, 2020, Defendant Daub, a mental health supervisor, interviewed Moore, who told Daub that she needed a single cell to protect her mental health, physical safety, and “serious medical needs.” Id. Daub / / / nonetheless denied her “health care grievance.” Id at 14–15. Subsequent administrative grievances filed by Moore were also denied. Id. at 15.

3 On March 21, 2022, Defendants Palmer and Lewis, RJD Chief Deputy Warden and Associate Warden, respectively, interviewed Moore. Id. at 16. They discussed Moore’s history and medical needs. Moore told Palmer and Lewis that she needed to be housed in a single cell due to her serious medical needs and for her safety. Id. Palmer ultimately declined to approve Moore for a single cell. Id. at 16–17.

8 On April 15, 2022, Moore commenced the instant civil action pursuant to 42 U.S.C. § 1983 and also filed motions to proceed in forma pauperis (“IFP”) and for a preliminary injunction (“PI”). See ECF Nos. 1–3. In her Complaint, Moore raised Eighth Amendment, Due Process, and Equal Protections claims. She alleged she has been improperly denied single-cell housing and, as a result, she has been unable receive adequate medical care for her gender dysphoria. Id. She further alleged that she is unable to pursue hormone replacement therapy because hormones will cause “her breasts [to] get bigger,” which will, in turn, “entice cellmates to harass or assault her.” Id. at 5. She stated that the “mental stress of being forced to live with others and undress and bathe in front of them while they watch her” deprives her of her of “safe living arrangements” and, in turn, “denie[s] her medical treatment.” Id. 19 Moore filed another motion for a PI on August 2, 2022, as well as subsequent supporting documents and exhibits. See ECF Nos. 6–10. On September 22, 2022, the Court granted Plaintiff’s IFP motion and screened Moore’s Complaint. See ECF No. 12.

22 In its Order, the Court dismissed three Defendants, dismissed Moore’s Equal Protection and Due Process claims as to all Defendants for failure to state a claim, and ordered U.S. Marshal service of the remaining six Defendants as to Moore’s Eighth Amendment claims.

25 See id. In the same Order, the Court denied both PI motions. Id. A summons was issued on September 23, 2022, but, as of the date of this Order, no Defendant has been served.

27 See ECF No. 13; see generally Docket.

1 MOTION FOR PRELIMINARY INJUNCTION 2 In her PI Motion, Moore asks the Court to issue an injunction requiring Defendants to house her in a single cell. PI Mot. at 10.

4 I. Legal Standard 5 As discussed in this Court’s previous Order, 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”). A 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). 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).

16 Substantively, “‘[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 her favor, and that an injunction is in the public interest.” Glossip v. Gross, 576 U.S. 863, 876 (2015) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)). “The first factor under Winter is the most important—likely success on the merits.” Garcia v. Google, Inc., 786 22 F.3d 733, 740 (9th Cir. 2015). In addition, “[u]nder Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”

24 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

25 II. Discussion 26 Moore’s PI Motion must be denied because it is premature and because she has failed to adequately establish immediate, irreparable harm and success on the merits.

1 First, the United States Marshal has yet to effect service upon Defendants on Plaintiff’s behalf. As such, Defendants have no actual notice, see Fed. R. Civ. P. 65(a)(1) (“The court may issue a preliminary injunction only on notice to the adverse party.”), and the Court has no personal jurisdiction over any Defendant at this time, see Fed. R. Civ. P. 65(d)(2) (stating a preliminary injunction binds only “the parties to the action”); Murphy Bros., Inc., 526 U.S. at 350 (stating one becomes a party “only upon service”); Zepeda, 753 F.2d at 727–28.

8 Second, even assuming this Court currently had jurisdiction over Defendants, Moore would not be entitled to a preliminary injunction at this stage of these proceedings because, as discussed in this Court’s previous Order, “[t]he fact that plaintiff has met the pleading requirement allowing h[er] to proceed with the complaint does not, ipso facto, entitle h[er]to a preliminary injunction.” Claiborne v. Blauser, No. 10-cv-2427-LKK, 2011 WL 13 3875892, at *8 (E.D. Cal. Aug. 31, 2011), report and recommendation adopted, 2011WL 4765000 (E.D. Cal. Sept. 29, 2011). Mere “[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674–75 (9th Cir. 1988). Instead, to meet the “irreparable harm” requirement, Plaintiff must do more than simply allege imminent harm; she must demonstrate it. Id. at 674 (emphasis added). This requires Moore to present specific facts that show she faces a credible threat of immediate and irreparable harm unless Defendants are ordered to house her in a single cell while this matter proceeds.

21 Fed. R. Civ. P. 65(b).

22 Here, Moore alleges that an injunction requiring her to be housed in a single cell is necessary because of the “possibility that she could be sexually assaulted again,” or the “possibility [she] would . . . be housed with[,] and assaulted by[,] a person who is HIV positive.” PI Mot. at 6. She also states that she uses a “C-PAP” machine for sleep apnea and “if another COVID surge happens she runs the risk of contracting COVID from transmission of particles going into her C-PAP machine.” Id. at 9. These speculative || allegations are insufficient to establish “immediate and irreparable harm.” See Fed. R. Civ. ||P. 65(b); Caribbean Marine, 844 F.2d at 674. While Moore alleges in her Complaint that ||she was assaulted by a cellmate over four years ago, in 2018, she has failed to allege ||specific facts to illustrate a risk of immediate and irreparable harm. See Rigsby v. State, 5 11-cv-1696-PHX-DGC, 2013 WL 1283778, at *5 (D. Ariz. Mar. 28, 2013) (finding || allegation of assault that occurred years prior insufficient to establish an immediate and ||irreparable harm). Finally, at this stage of the proceedings, the Court cannot determine the || likelihood of success on the merits of Plaintiff's Eighth Amendment claims, as such an ||assessment requires the submission of evidence rather than simply a determination as to 10 whether a claim has been plausibly stated. As such, even if the Court had personal |/jurisdiction over Defendants at this stage, Plaintiff would not be entitled to a preliminary 12 injunction.

13 Thus, because Defendants have not yet been served, Plaintiff has alleged only 14 speculative fears of potential future harm, and Plaintiff has not yet shown a likelihood of ||success on the merits, the Court DENIES Plaintiff's PI Motion. See Dymo Indus. v. || Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary injunction 17 the exercise of a very far reaching power never to be indulged in except in a case clearly || warranting it.”’).

19 CONCLUSION AND ORDER 20 For the reasons set forth above, the Court hereby DENIES Plaintiff's Motion for || Preliminary Injunction (ECF No. 15) WITHOUT PREJUDICE.

22 IT IS SO ORDERED.

23 Dated: October 26, 2022 . tt 24 pee Janis L. Sammartino 25 United States District Judge