United States District Court, D. Arizona
ORDER
MICHAEL T. LIBURDI UNITED STATES DISTRICT JUDGE.
Plaintiff
Douglas Wayne Derello, Jr., who is currently confined in the
Arizona State Prison Complex-Eyman, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983. Before
the Court are Plaintiff's Motion to Clarify (Doc. 64),
which the Magistrate Judge construed as a motion seeking
injunctive relief, and Plaintiff's Notice to the Chief
District Court Judge (Doc. 71), which the Magistrate Judge
construed as a Motion seeking injunctive relief.
The
Court will deny the Motions.
I.
Motions for Injunctive Relief
In his
Motion to Clarify, Plaintiff states that he is not given a
proper amount of time to use a typewriter in his cell and
that Defendant Harris claims the Arizona Department of
Corrections (ADC) cannot find Plaintiff's typewriter
ribbons and correction tape. As relief, Plaintiff requests
that he be placed “back at South Unit” since he
was moved “without provocation, ” that he be
given his typewriter, that he be “allowed a minimum to
get the documents needed from his legal property held by
Defendant Harris, ” that Defendant Harris and/or ADC
agents be ordered not to destroy Plaintiff's property,
and that Defendants be ordered not to retaliate against
Plaintiff. (Doc. 64.)
In
Response, Defendant Harris asserts that when an inmate is
being housed in maximum custody or close custody, he cannot
possess a typewriter in his cell due to safety and security
concerns, and Plaintiff is currently housed in close custody.
(Doc. 81.) Defendant further asserts that Plaintiff had not
advised staff he wished to use his typewriter, but after
learning that Plaintiff wished to use his typewriter, the
typewriter was forwarded to Plaintiff's Corrections
Officer (CO) III so that Plaintiff could have access to his
typewriter. (Id.) Defendant asserts that
Plaintiff's typewriter ribbons and correction tape were
found on July 18, 2019 and returned to Plaintiff.
(Id.) Defendant also asserts that Plaintiff was
provided access to all of his legal materials on July 18,
2019 for 4 ½ hours. (Id.) Defendant asserts
that he has no authority to transfer Plaintiff back to
“South Unit” or to give Plaintiff a typewriter in
his cell. (Id.) As a result, Defendant Harris argues
that Plaintiff's claims regarding his typewriter ribbon,
correction tape, and access to legal materials should be
denied as moot, and the remainder of the motion should be
denied because Defendant Harris does not have authority to
grant Plaintiff relief and Plaintiff cannot meet the standard
for obtaining a preliminary injunction. In reply, Plaintiff
argues that close custody inmates are allowed to have a
typewriter in their cells. Plaintiff admits that his
typewriter ribbons were returned to him.
In his
Notice, Plaintiff states that on June 10, 2019, he overheard
a group of officers stating that inmates that file lawsuits
“need [their] asses kicked” and noted that
Plaintiff “has a lawsuit against Harris.” (Doc.
71 at 2.) Plaintiff asserts that after he left medical on
July 18, 2019, an officer stated “th[ere's] that
piece of shit, did you get all your stuff yesterday?, ”
apparently referring to an extra blanket that medical had
ordered for Plaintiff. (Id. at 2.) Plaintiff asserts
that a few minutes later, officers confiscated
Plaintiff's extra blanket. (Id. at 3.) Plaintiff
believes that if he had refused “in any way, ” he
would have been badly assaulted. (Id.) As relief,
Plaintiff requests that he be separated from Defendant Harris
so that they are both no longer at SMU. (Id.) In
response, Defendant asserts that Plaintiff did not have a
valid Special Needs Order (SNO) for an extra blanket when his
blanket was taken, but Plaintiff may now possess a medical
blanket pursuant to the SNO, and he now has three blankets in
his cell and, as a result, his request for an additional
blanket should be denied as moot. (Doc. 106.) In Reply,
Plaintiff denies that his extra blanket has been returned to
him. (Doc. 108.)
II.
Legal Standard
“A
preliminary injunction is ‘an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of
persuasion.'” Lopez v. Brewer, 680 F.3d
1068, 1072 (9th Cir. 2012) (quoting Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam);
see also Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008) (citation omitted) (“[a]
preliminary injunction is an extraordinary remedy never
awarded as of right”). A plaintiff seeking a
preliminary injunction must show that (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable
harm without an injunction, (3) the balance of equities tips
in his favor, and (4) an injunction is in the public
interest. Winter, 555 U.S. at 20. “But if 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) (quoting Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under
this serious questions variant of the Winter test,
“[t]he elements . . . must be balanced, so that a
stronger showing of one element may offset a weaker showing
of another.” Lopez, 680 F.3d at 1072.
Regardless
of which standard applies, the movant “has the burden
of proof on each element of the test.” See Envtl.
Council of Sacramento v. Slater, 184 F.Supp.2d 1016,
1027 (E.D. Cal. 2000). Further, there is a heightened burden
where a plaintiff seeks a mandatory preliminary injunction,
which should not be granted “unless the facts and law
clearly favor the plaintiff.” Comm. of Cent. Am.
Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986)
(citation omitted).
The
Prison Litigation Reform Act imposes additional requirements
on prisoner litigants who seek preliminary injunctive relief
against prison officials and requires that any injunctive
relief be narrowly drawn and the least intrusive means
necessary to correct the harm. 18 U.S.C. § 3626(a)(2);
see Gilmore v. People of the State of Cal., 220 F.3d
987, 999 (9th Cir. 2000).
A court
may issue an injunction against a non-party only where the
non-party acts in active concert or participation with an
enjoined party. Fed.R.Civ.P. 65(d)(2) (a preliminary
injunction only binds those who receive actual notice of it
by personal service or are parties, their officers, agents,
servants, employees, and attorneys, and persons in active
concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th
Cir. 1984) (“A federal court may issue an injunction if
it has personal jurisdiction over the parties and subject
matter jurisdiction over the claim; it may not attempt to
determine the rights of persons not before the
court.”); see also Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 110 (1969).
III.
Discussion
There
is no showing that Defendant Harris has any authority over
where Plaintiff is housed and, thus, the Court lacks
jurisdiction related to Plaintiff's housing location.
Although Plaintiff argues that he is being denied access to a
typewriter, Defendant asserts that Plaintiff must request
access to his typewriter from his CO III, and Plaintiff
presents no evidence that his CO III is denying him access to
a typewriter when Plaintiff requests access; additionally,
there is no showing that Defendant Harris has authority over
whether Plaintiff is granted access to his typewriter.
Further, based on Defendant's assertion that Plaintiff
was allowed to view his legal documents on July 18, 2019 for
4 ½ hours, it appears that Plaintiff's request to
view his legal documents is moot. Plaintiff's remaining
requests-that ADC agents be ordered not to ...