EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He claims that defendants Gustafson, Robertson, Deems, and Virga were deliberately indifferent to his serious medical needs and that Gustafson used excessive force against him. Plaintiff has filed a motion for partial summary judgment, ECF No. 34, and defendants' opposition includes a counter-motion for summary judgment. ECF No. 44. Plaintiff then filed a "Supplemental Motion [for] Summary Judgment," which he filed after the cross-motions were fully briefed and submitted for decision. ECF No. 72. Defendants have moved to strike that "supplemental" motion. ECF No. 73. Plaintiff then responded with what he styles as a motion for rebuttal to the motion to strike, which the court construes as an opposition to the motion to strike. ECF No. 78. Additionally, plaintiff has filed a motion for a preliminary injunction.
Plaintiff was transferred from California State Prison-Sacramento ("CSP-Sac") to High Desert State Prison ("HDSP") on November 14, 2011. ECF No. 52 at 1.
Plaintiff also claims that defendant Robertson, a physician's assistant at HDSP, was deliberately indifferent to plaintiff's medical needs. Id. at 6. Specifically, plaintiff claims that Robertson discontinued his medications (nasal spray, pine tar/coal tar soap, Metamucil, psyllium powder, lactolose, and magnesium citrate) and medical appliances (cane, wheelchair, back brace, and leg brace). Id. at 4-5. Plaintiff also contends that Robertson prevented him from seeing a doctor to reinstate his medications and appliances, and that Robertson failed to provide physical therapy. Id. at 6.
Lastly, plaintiff claims that defendants Deems and Virga were deliberately indifferent to his serious medical needs when they "adversely transferred" him to HDSP with knowledge of his medical condition. Id. at 3. Deems is the Chief Medical Officer at CSP-Sac and Virga is the Warden of that institution. Id. at 2. According to plaintiff, they transferred him from CSP-Sac to HDSP with knowledge that he was disabled and that the transfer would expose him to "injurious conditions." Id. at 3, 6.
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "`pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 ("[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary judgment.
Plaintiff seeks partial summary judgment with respect to his excessive force claim against Gustafson.
Plaintiff argues that "[t]he undisputed facts of this case show that the plaintiff was subjected to the unlawful use of pepper spray." ECF No. 34 at 3. In support, he relies on his declaration stating that Gustafson confiscated his mobility devices, that he had told Gustafson that he needed his cane to perform the ordered bend and squat, that Gustafson pepper sprayed and tightly handcuffed plaintiff behind his back, and that plaintiff did not resist or disobey orders. Id. at 5, ¶¶ 2-5. According to plaintiff, he was complying with Gustafson's orders and there was no basis for the use of force, yet Gustafson sprayed him in the face with pepper spray. Plaintiff is a percipient witness and obviously his version of the events is relevant and admissible. But Gustafson disputes that version of events.
According to Gustafson's declaration he did not confiscate plaintiff's cane or back brace when plaintiff arrived at HDSP and he had no authority to confiscate any medically prescribed assistive device without the approval of medical staff. ECF No. 44-4 ("Gustafson Decl.") ¶¶ 3, 4. Gustafson did not recall plaintiff even having a cane or back brace when he arrived at HDSP.
Clearly, plaintiff and Gustafson describe very different versions of what occurred. While plaintiff contends that Gustafson confiscated his mobility devices and gratuitously pepper sprayed plaintiff in the face in spite of plaintiff having explained that he needed his cane to perform the ordered bend and squat, ECF No. 34 at 5, ¶¶ 2-5, Gustafson contends that he did not confiscate the cane or back brace and that plaintiff refused to comply with the several orders which necessitated the pepper spraying to gain compliance, Gustafson Decl. ¶¶ 3, 7-10, 16. These factual disputes are material, as plaintiff's claim depends on whether Gustafson's use of the pepper spray was malicious and sadistic or a good-faith effort to maintain order and discipline. See Hudson, 503 U.S. at 6-7. Further, the dispute is genuine. Both individuals are percipient witnesses to what occurred. A jury could credit either witness' version and the credibility determination cannot be made on summary judgment. Whether a jury will credit Gustafson or plaintiff remains to be seen, but if it believes Gustafson it could reasonably return a verdict for Gustafson based on the account provided in his declaration. Accordingly, plaintiff's motion for partial summary judgment on the excessive force claim against Gustafson must be denied.
Gustafson also moves for summary judgment as to the same event. ECF No. 44-2 at 6-8. He also asserts on summary judgment a defense of qualified immunity. Id. at 9. For the same reasons identified above, Gustafson's motion must be denied.
As discussed, Gustafson argues that the use of pepper spray was justified by plaintiff's "refusal to follow lawful orders." ECF No. 44-2 at 7. He states in the declaration that he did not confiscate the cane and back brace and pepper sprayed plaintiff to gain compliance with lawful orders. ECF No. 44-4 ("Gustafson Decl.") ¶¶ 3, 10. This includes the alleged refusal to comply with orders to bend at the waist, spread his buttocks, and cough as part of the unclothed body search, to submit to handcuffs, and to get down. Id. at ¶¶ 5, 7-9. Gustafson's declaration indicates that plaintiff arrived at HDSP with twenty to thirty other inmates of various custody levels; Gustafson states that he was responsible for ensuring that these inmates were processed into the institution safely. Id. at ¶ 13-15. According to Gustafson, plaintiff's refusal to comply disrupted the processing of other inmates and created the suspicion that plaintiff was attempting to introduce contraband into the institution. Id. at ¶ 16.
As with plaintiff's motion, this motion presents a factual dispute between two percipient witnesses whose descriptions of what occurred conflict in material ways. Plaintiff's contention that Gustafson confiscated the cane and back brace, ECF No. 52 at 2,
As discussed above, both individuals were percipient to the encounter but describe very different versions of what occurred. If plaintiff's account is believed, a reasonable jury could find in his favor. The respective credibility of plaintiff and Gustafson over these disputed facts simply cannot be resolved on summary judgment.
Plaintiff has established a genuine dispute as to several facts that affect whether, as Gustafson claims, Gustafson's use of pepper spray was justified. Further, as noted, the disputed facts are material to plaintiff's claim that the use of the pepper spray was malicious and gratuitous and not a good-faith effort to maintain order and discipline. See Hudson, 503 U.S. at 6-7. Thus, Gustafson's counter-motion for summary judgment on plaintiff's excessive force claim against Gustafson must be denied.
Gustafson also seeks summary judgment on plaintiff's claim of deliberate indifference. To succeed on an Eighth Amendment claim predicated on the denial of medical care, a plaintiff must establish that he had a serious medical need and that the defendant's response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, delay or intentional interference with medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. A physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.
It is important to differentiate common law negligence claims of malpractice from claims predicated on violations of the Eighth Amendment's prohibition of cruel and unusual punishment. In asserting the latter, "[m]ere `indifference,' `negligence,' or `medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06; see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
Gustafson argues that summary judgment in his favor is appropriate because (1) as a correctional officer, he could not take away a medically prescribed assistive device without the approval of medical staff, (2) he did not confiscate plaintiff's cane or back brace,
Gustafson's argument that he lacked authority to take away the cane or back brace and therefore could not have violated plaintiff's rights is a non sequitur. Establishing that he lacked such authority does not establish as a matter of law that he did not, in fact, take the cane and back brace from plaintiff. Whether Gustafson did or did not have authority to take away a medically prescribed assistive device, plaintiff states in his declaration that Gustafson did in fact confiscate the cane and back brace. ECF No. 52 at 3. Plaintiff also disputes in his declaration the assertion that he did not have a valid chrono for the cane and brace when he arrived at HDSP. Id. He submitted a February 2011 chrono which indicates only a temporary, six-month cane accommodation. ECF No. 34 at 8. He acknowledges that the chrono is of limited duration but contends that "the chrono and cane is supposed to be reevaluated approx. the date of expiration and to remain the property of plaintiff pursuant to [Cal. Code Regs. tit. 15, § 3358(b)],"
Although Gustafson disputes plaintiff's version of what occurred, the dispute simply underscores the point that summary judgment is not appropriate here. Plaintiff, himself a percipient witness to the events, has shown that specific facts that are material to his claim are in genuine dispute. This includes the disputes over whether plaintiff had a cane and back brace when he arrived, whether plaintiff had a valid chrono for a cane and back brace, and whether Gustafson without justification confiscated those assistive devices upon plaintiff's arrival at HDSP. Those disputed facts are material because plaintiff's deliberate indifference claim hinges on whether Gustafson knew that plaintiff faced a substantial risk of serious harm and whether Gustafson disregarded that risk by failing to take reasonable measures to abate it. See Farmer, 511 U.S. at 847. Plaintiff's testimony suggests that Gustafson confiscated the cane knowing that plaintiff was disabled, and that Gustafson punished plaintiff with pepper spray when he did not perform tasks he was obviously physically incapable of performing. ECF No. 52 at 2. The dispute is also genuine because a fair-minded jury, if it credits plaintiff's testimony, could return a verdict for plaintiff. Thus, there are genuine disputes over material facts and Gustafson's counter-motion for summary judgment on this claim must be denied.
Gustafson's qualified immunity argument also does not warrant summary judgment in his favor.
Qualified immunity protects government officials from liability for civil damages where a reasonable person would not have known that their conduct violated a clearly established right. Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). "In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry." Tolan v. Cotton, ___ U.S. ___, ___, 134 S.Ct. 1861, 1865 (2014) (per curiam). "The first asks whether the facts, `taken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a federal right.'" Id. (internal bracketing omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). "The second prong of the qualified-immunity analysis asks whether the right in question was `clearly established' at the time of the violation." Tolan, 134 S. Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). A plaintiff invokes a "clearly established" right when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. at 640. "The salient question is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged conduct was unconstitutional." Tolan, 134 S. Ct. at 1866 (internal bracketing and quotation marks omitted).
Gustafson's qualified immunity argument rests on his disputed version of the encounter and his contention that there was no constitutional violation. As discussed above, material facts are in genuine dispute as to whether there was a constitutional violation. Specifically, there is a dispute as to whether Gustafson used his pepper spray to restore order and discipline and whether Gustafson ever confiscated plaintiff's assistive medical devices. If there was no constitutional violation, then of course there was no violation of a clearly established constitutional right. But the material factual disputes which preclude summary judgment on that question also preclude summary judgment on Gustafson's assertion of qualified immunity here. See LaLonde v. County of Riverside, 204 F.3d 947, 953 (9th Cir. 2000) ("The determination of whether a reasonable officer could have believed his conduct was lawful is a determination of law that can be decided on summary judgment only if the material facts are undisputed.").
Plaintiff claims that Robertson was deliberately indifferent to plaintiff's serious medical needs when he discontinued plaintiff's medications and medical appliances. Compl. at 4-6.
Plaintiff asserts in his declaration that Robertson met with him several times while at HDSP. ECF No. 52 at 4. Plaintiff also indicates that he did not receive certain medications that he had received at other institutions. Compl. at 4.
In Toguchi, the Ninth Circuit addressed an Eighth Amendment claim based on a physician's decision to discontinue a prescription for a prisoner. 391 F.3d at 1058. In affirming the district court's grant of summary judgment for the defendants, the Ninth Circuit framed the plaintiff's claim as one involving choices between alternative courses of treatment:
Id. (internal quotation marks, bracketing, and ellipsis omitted); see also Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) ("Under the Eighth Amendment, Forbes is not entitled to demand specific care.").
Plaintiff has not shown—nor even alleged—that Robertson's discontinuation of his medications was medically unacceptable under the circumstances and was chosen in conscious disregard of an excessive risk to plaintiff's health. That HDSP did not stock those medications does not meet the standard the Ninth Circuit identified in Toguchi, nor does plaintiff's claim that Robertson had become frustrated over plaintiff's repeated requests. Establishing frustration over repeated requests for alternatives that were not stocked at HDSP does not establish the treatment described by Robertson was so wanting as to violate the Eighth Amendment. While plaintiff has certainly established a difference of opinion between he and Robertson (and arguably between plaintiff's previous physicians and Robertson), plaintiff has not established that Robertson was deliberately indifferent to plaintiff's serious medical needs.
Believing plaintiff's evidence, Robertson told plaintiff that he discontinued the assistive devices because he did not believe plaintiff needed them. Pl.'s Dep. at 51:1-12. That explanation is consistent with Robertson's observation in the April 4, 2012 document, which stated plaintiff was "able to demonstrate no ambulatory or other disability [at] this time." ECF No. 46-2 at 32. Nevertheless, plaintiff "object[s]" to that statement, asserting that he "fell three times at [HDSP] and twice at Wasco in July when he saw physician Patel and his chrono was re-evaluated to [`]no prolonged standing or walking[`] and again an assistive device was re-administ[er]ed in opposition to P.A. Robertson[`]s opinion." ECF No. 52 at 5.
Even believing plaintiff's claims that he fell several times without the assistive devices and that a physician subsequently issued a chronological order authorizing such devices, plaintiff has not shown that Robertson was deliberately indifferent to his serious medical needs. Again, plaintiff has simply established a difference of medical opinion between himself and Robertson and between other physicians and Robertson. As noted, a deliberate indifference claim requires more than a difference of medical opinion. Toguchi, 391 F.3d at 1058. Although plaintiff disagrees with the choice of treatment provided, he has not shown that such choice amounts to deliberate indifference. Even when plaintiff's allegations are viewed in the light most favorable to him, they do not raise a triable issue of fact with respect to whether Robertson acted with deliberate indifference to plaintiff's serious medical needs. Accordingly, summary judgment in Robertson's favor is appropriate.
Plaintiff names as defendants Deems and Virga simply because they are supervisors and not because of any personal involvement by them in the matters complained of by plaintiff. To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. It is plaintiff's responsibility to allege facts to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Here, plaintiff improperly attempts to impose liability on Deems and Virga solely because of their supervisory roles. Plaintiff stated in his deposition that he sued Deems for no reason other than Deems was in charge of the medical staff at CSP-Sac and the transfer of plaintiff's paperwork was not "a smooth process." ECF No. 44-5 at 15 (Pl.'s Dep. at 57:2-17). Plaintiff also testified that he was suing Virga for no other reason than Virga was in charge of CSP-Sac. Id. at 14 (Pl.'s Dep. at 54:13-18). As noted, plaintiff may not sue an official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Iqbal, 129 S. Ct. at 1948. Because respondeat superior liability is inapplicable to § 1983 suits, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. Plaintiff's unsupported and conclusory allegations that Deems and Virga are somehow liable for Gustafson's alleged wrongdoing falls short of what is required to demonstrate involvement or personal participation in any constitutional deprivation. Accordingly, summary judgment must be granted in favor of defendants Deems and Virga.
Plaintiff filed a "Supplemental Motion to Summary Judgment," through which he appears to reiterate his arguments and to request summary judgment against Robertson, Deems, and Virga.
While plaintiff's filings requesting a preliminary injunction are largely incoherent, it appears that he is requesting that the court (1) take judicial notice that plaintiff is being deprived of medical care, ECF No. 74 at 4, and (2) order defendants to provide "meaningful and effective aspects of rehabilitative accommodations," including medication and assistive devices that were previously prescribed, id. at 2, 5. In support of his motion, plaintiff contends that he is "under attack repetitively [sic] . . . from defendants," that his confidential mail has been opened, and that he was subject to a "[c]ruel & unusual . . . adverse transfer classification hearing, suddenly . . . and without notice" on November 5, 2014. ECF No. 79 at 3, 5-6.
The request for judicial notice must be denied because the "fact" that plaintiff wants judicially noticed—that is, that he has been deprived of medical care—is not an appropriate subject for judicial notice. Federal Rule of Evidence 201 permits the court to take judicial notice only of a fact that is "not subject to reasonable dispute." The defendants reasonably dispute whether they have deprived plaintiff of medical care. Accordingly, plaintiff's request for judicial notice must be denied.
Further, plaintiff has not met the standards for obtaining preliminary injunctive relief. A preliminary injunction will not issue unless necessary to prevent threatened injury that would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (per curiam). "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." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions—that is, balancing the elements of the preliminary injunction test, so that a stronger showing of one element may offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). "In other words, `serious questions going to the merits,' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).
The only support that plaintiff provides for his claim that he has a "great likelyhood [sic] of success" on the merits is his reference to his previous filings. ECF No. 79 at 16. But for the reasons discussed in the summary judgment analysis above, plaintiff's previous filings fail to establish that he is likely to succeed on the merits. To the contrary, he fails to overcome summary judgment for defendants as to most of his claims. While plaintiff has survived summary judgment with respect to his claims against Gustafson, plaintiff has only demonstrated a genuine dispute over material facts as to those claims. He simply presents a factual dispute for which credibility determinations must be made at trial, not that he is likely to succeed on the merits as to those claims. Nor has he shown irreparable harm if his motion is not granted. Accordingly, his request for a preliminary injunction must be denied.
Plaintiff also alleges in this motion unauthorized access to his confidential mail and the constitutionality of his transfer classification hearing. However, these allegations do not relate the events alleged in the complaint and cannot be litigated in this case. The new allegations must instead be pursued in a separate civil rights or habeas action after following the proper course of exhaustion. See 28 U.S.C. § 2254(b)(1) (generally requiring exhaustion of state court remedies prior to the filing of a federal habeas petition); Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) and McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) (together holding that civil rights claims must be exhausted prior to the filing of the original or supplemental complaint).
Accordingly, it is hereby RECOMMENDED that:
1. Plaintiff's motion for summary judgment (ECF No. 34) be denied;
2. Defendants' motion for summary judgment (ECF No. 44) be denied as to Gustafson, but granted as to Robertson, Deems, and Virga;
3. Plaintiff's "Supplemental Motion to Summary Judgment" (ECF No. 72) be denied;
4. Defendants' motion to strike plaintiff's supplemental motion (ECF No. 73) be denied;
5. Plaintiff's "Motion for Rebuttal" of defendant's motion to strike (ECF No. 78) be denied; and
6. Plaintiff's motion for a preliminary injunction (ECF Nos. 74, 79) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Cal. Code Regs. tit. 15, § 3358(b).
