Toney v. Gwathey M.D.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN TONEY, Case No.: 18CV2786-WQH(KSC)

12 Plaintiff, REPORT & RECOMMENDATION 13 v. TO DENY MOTION FOR PRELIMINARY INJUNCTION AND 14 DR. J. GWATHNEY, M.D., et al.,, TEMPORARY RESTRAINING 15 Defendants. ORDER [DOC. NO. 19] 16 17 On May 28, 2019, plaintiff filed a Motion for Preliminary Injunction and 18 Temporary Restraining Order, which has since been supplemented with additional filings. 19 [Doc. No. 19, 21 & 29.] Plaintiff contends defendants have denied him access to legal 20 materials and personal property he needs to litigate his case. The Motion is opposed by 21 defendants. [Doc. No. 33.] For the reasons outlined below, it is RECOMMENDED the 22 Honorable William Q. Hayes DENY plaintiff’s Motion. 23 DISCUSSION 24 Plaintiff reports that on April 9, 2019, he broke his foot while serving as an inmate 25 at the Metropolitan Correctional Center, San Diego (MCC). [Doc. No. 21 at 1.] He was 26 transferred to a hospital where he underwent surgery on his foot. [Id.] After he was 27 discharged from the hospital on April 13, 2019, he was sent to the Western Regional 28 1 Detention Facility (GEO) rather than being returned to the MCC, where inmates must 2 traverse a number of stairs within the housing unit. [Id. at 1-2; Doc. No. 19 at 2; Doc. No. 3 33, p.2, fn. 2.] Plaintiff now contends certain belongings he possessed at the MCC, 4 including large envelopes, stamps, a pen, and his administrative remedy requests and 5 responses, was not returned to him after his transfer out of MCC, and requests the Court 6 order defendants to restore plaintiff’s personal property to his possession. [Doc. No. 19 at 7 2.] 8 “A plaintiff seeking a preliminary injunction must establish that he is likely to 9 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 10 preliminary relief, that the balance of equities tips in his favor, and that an injunction 11 is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 12 7, 20 (2008). “[A]n injunction will issue only if the wrongs are ongoing or likely to 13 recur.” F.T.C. v. Evans Products Co., 775 F.2d 1084, 1087 (9th Cir. 1985.) A preliminary 14 injunction is an “extraordinary remedy that may be only awarded upon a clear showing 15 that the plaintiff is entitled to such relief.” Id. The “clear showing” requirement is 16 particularly strong when a party seeks a temporary restraining order. See Mazurek v. 17 Armstrong, 520 U.S. 968, 972 (1997). In addition, under the Prison Litigation Reform 18 Act, preliminary injunctive relief against a prison system must be “narrowly drawn, 19 extend no further than necessary to correct the harm the court finds requires preliminary 20 relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626 21 (a)(2). 22 Here, plaintiff has not demonstrated a likelihood of success on the merits of his 23 preliminary injunction request, much less demonstrated the law and the facts clearly 24 favor him. As explained in the Declaration of Ezequiel Echeveste, Case Management 25 Coordinator for the Federal Bureau of Prisons, the procedures for the receipt, inventory, 26 storage, and return of inmate personal property during the time plaintiff was housed at 27 MCC allowed inmates to retain authorized personal belongings in a storage bin under 28 their bunk beds, which can be secured with an approved combination lock. [Doc. No. 33- 1 1, ¶ 8.] All such personal property is inventoried on a BP-A0383, Inmate Personal 2 Property Record Form, during an inmate’s admission, transfer, placement in the SHU, 3 and every other time the inmate’s personal property is inventoried. [Id.] Inmates are 4 informed of these procedures and given copies of their property form. [Id.] When these 5 procedures are followed and an inmate is transferred, the property is taken to the 6 Receiving and Discharge Office, re-inventoried, and sent to the new facility by UPS. [Id. 7 ¶ 9.] 8 Mr. Echveste reports there is no BP-A0383 Inmate Personal Property Record Form 9 for the time plaintiff was housed at the MCC. [Id. ¶¶¶ 3, 4, and 10.] The personal 10 property plaintiff now requests the Court order defendants return to him was presumably 11 left unsecured by plaintiff, and without informing a housing unit officer, medical staff, or 12 Release and Discharge staff that he had any such property. [Id. ¶ 11.] As such, it could 13 have been taken by other inmates or discarded by Bureau of Prison officials after plaintiff 14 left MCC. [Id.] Thus, even if plaintiff could demonstrate he was in possession of the 15 aforementioned personal belongings while he was at MCC, which he has not, any such 16 property is no longer available to be sent to him, due to plaintiff’s apparent failure to 17 follow MCC regulations. Accordingly, plaintiff is unlikely to succeed on the merits of his 18 claim that defendants should send him his property, and he has also not met his burden of 19 establishing the balance of equities favors him. Furthermore, counsel for defendants has 20 since provided plaintiff with copies of the administrative remedy documents and 21 responses thereto that he seeks, and there is little risk of plaintiff suffering irreparable 22 harm, let alone extreme or very serious damage from the loss of the other missing items, 23 i.e. envelopes, stamps, and a pen. [Doc. No. 33, p. 2.] 24 CONCLUSION 25 Having reviewed plaintiff’s Motion for Preliminary Injunction and Temporary 26 Restraining Order, the undersigned Magistrate Judge submits this Report and 27 Recommendation to the Honorable William Q. Hayes pursuant to Title 28, United States 28 1 Code, Section 636(b)(1). For all of the reasons outlined above, IT IS HEREBY 2 ||, RECOMMENDED that the District Court issue an Order DENYING plaintiff's Motion. 3 IT IS HEREBY ORDERED that no later than September 13, 2019, any party to 4 || this action may file written objections with the Court and serve a copy on all parties. The 5 document should be captioned “Objections to Report and Recommendation.” 6 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 7 Court and served on all parties no later than September 20, 2019. The parties are advised 8 || that failure to file objections within the specified time may waive the right to raise those 9 || objections on appeal of the Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 10 |] 1991). 11 IT IS SO ORDERED. 12 ||Dated: August 23, 2019 Jl. Lan) 13 Ml We SS 14 Hori. Karen 8S. Crawford United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28