Estate of Gerardo Cruz-Sanchez v. United States of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF GERARDO CRUZ- Case No.: 17-cv-569-AJB-NLS SANCHEZ, by and through his successor- 12 in-interest Paula Garcia Rivera, et al., ORDER DENYING DEFENDANTS’ 13 MOTION FOR RESTRAINING Plaintiffs, ORDER 14 v. 15 THE UNITED STATES OF AMERICA, (Doc. No. 123) 16 et al., 17 Defendants. 18 19 Presently before the Court is Defendants’ motion for restraining order. (Doc. No. 20 123.) On December 17, 2018, Plaintiff filed a response to Defendants’ motion. (Doc. No. 21 125.) On December 20, 2018, the Court held a hearing on the instant motion. Based on the 22 arguments presented in the briefing as well as at the hearing, the Court DENIES 23 Defendants’ motion for restraining order. 24 BACKGROUND 25 The instant matter revolves around the arrest, incarceration and eventual death of 26 Gerardo Cruz-Sanchez. (See generally Doc. No. 83.) Mr. Cruz-Sanchez was incarcerated 27 at the Otay Mesa Detention Center (“OMDC”). (Id. ¶ 1.) CoreCivic contracts with the 28 United States to provide detention services at OMDC. (Doc. No. 107-1 at 6.) CoreCivic 1 provides support to facilitate the delivery of healthcare services. (Id. at 8.) 2 On February 11, 2016, Mr. Cruz-Sanchez had an intake assessment and reported no 3 medical problems. (Id. at 12.) On February 12, 2016, Mr. Cruz-Sanchez was seen regarding 4 pain in his upper eye lid. (Id.) On February 14, 2016, Mr. Cruz-Sanchez was seen by a 5 nurse regarding a headache, sore throat, cough and nasal congestion for two days. (Id.) On 6 February 16, 2016, Mr. Cruz-Sanchez saw another nurse complaining that he has had a 7 cough, body aches, and sore throat for one week. (Id.) On February 17, 2016, Mr. Cruz- 8 Sanchez saw a physician’s assistant regarding the same symptoms. (Id.) On February 26, 9 2016, an emergency call was made for Mr. Cruz-Sanchez. (Id. at 16.) Mr. Cruz-Sanchez 10 was then brought to the medical clinic and seen by a doctor. (Id.) The doctor then called 11 911 and Mr. Cruz-Sanchez was transported to the hospital. (Id.) On February 29, 2016, Mr. 12 Cruz-Sanchez passed away from pneumonia. (Id. at 20.) 13 On March 23, 2017, the San Diego Tribune ran an article regarding the instant 14 litigation. (Doc. No. 123 at 2.) On December 13, 2018, ABC News published a web article 15 with an accompanying Nightline television piece. (Id.) The Nightline piece contains an on- 16 camera interview of Plaintiffs’ counsel and Mr. Cruz-Sanchez’s wife. (Id.) Plaintiffs’ 17 counsel also provided ABC News with audio of call recordings from Mr. Chavez-Lopez 18 and video of Mr. Chavez-Lopez’s deposition testimony. (Id.) 19 Defendants seek an order restraining all parties and counsel from making or 20 providing extrajudicial statements, comments or communications about the subject matter 21 of this lawsuit directly or indirectly to the media. (Doc. No. 123 at 1.) 22 LEGAL STANDARD 23 A temporary restraining order (“TRO”) may be granted upon a showing “that 24 immediate and irreparable injury, loss, or damage will result to the movant before the 25 adverse party can be heard in opposition[.]” Fed. R. Civ. P. 65(b)(1)(A). The purpose of 26 such an order, as a form of preliminary injunctive relief, is to preserve the status quo and 27 prevent irreparable harm “just so long as is necessary to hold a hearing, and no longer.” 28 Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 1 U.S. 423, 439 (1974). A request for a TRO is evaluated by the same factors that generally 2 apply to a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 3 240 F.3d 832, 839 n.7 (9th Cir. 2001). However, a TRO is an “extraordinary remedy” and 4 is “never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) 5 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). Instead, the moving party bears the 6 burden of demonstrating four factors: (1) “he is likely to succeed on the merits;” (2) “he is 7 likely to suffer irreparable harm in the absence of preliminary relief;” (3) “the balance of 8 equities tips in his favor;” and (4) “an injunction is in the public interest.” Winter, 555 U.S. 9 at 20. 10 Although a plaintiff must satisfy all four of the requirements set forth in Winter, the 11 Ninth Circuit employs a sliding scale whereby “the elements of the preliminary injunction 12 test are balanced, so that a stronger showing of one element may offset a weaker showing 13 of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 14 Accordingly, if the moving party can demonstrate the requisite likelihood of irreparable 15 harm and show that an injunction is in the public interest, a TRO may issue so long as there 16 are serious questions going to the merits and the balance of hardships tips sharply in the 17 moving party’s favor. Id. 18 DISCUSSION 19 Defendants assert that Plaintiffs’ counsel’s pattern of behavior suggests that they 20 will continue to use the media to interfere with Defendants’ right to a fair trial. (Doc. No. 21 123 at 5.) Defendants also contend that Counsel has a fiduciary responsibility to avoid 22 obstructing the fair administration of justice. (Id. at 6.) Specifically, Defendants contend 23 that some of the material ABC News received is not part of the public domain and is subject 24 to the protective order. (Id. at 7.) 25 A gag order may be a prior restraint on speech. Levine v. United States Dist. Court 26 for Cent. Dist., 764 F.2d 590, 595 (9th Cir. 1985). Attorneys “do not lose their 27 constitutional rights at the courthouse doors.” Id. Here, Plaintiffs’ counsel states that the 28 San Diego Tribune and Plaintiffs’ counsel had no contact prior to the article being 1 published. (Doc. No. 125 at 5.) Further, ABC News decided to do the story and then 2 contacted Plaintiffs’ counsel about the court filings. (Id.) ABC News also contacted 3 Defendants for comment and Defendants did provide a comment on the Nightline video 4 clip. (Id.) Attorneys are allowed to comment on pending litigation under the First 5 Amendment. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1052 (1991). Here, the 6 Plaintiffs’ counsel’s First Amendment interests and public’s right of access outweigh 7 Defendants’ arguments. 8 Defendants argue that Plaintiffs’ counsel’s actions have impeded Defendants’ right 9 to a fair trial and impartial jury. (Doc. No. 123 at 4.) However, the news cycle is constantly 10 changing. If this case proceeds to trial, likely few jurors, if any at all, will recall having 11 seen the articles. The venire may be prescreened with regard to whether or not they have 12 seen any news reports on this case. Further, through vigorous voir dire, counsel and the 13 Court may ensure that a fair trial does result for all. 14 Defendants further attempt to establish a gag order is necessary because certain 15 evidence was not part of the public domain. Defendants specifically point to following 16 evidence as being improperly provided to the media: the phone calls of Mr. Chavez-Lopez 17 and the video of his deposition. (Doc. No. 123 at 7–8.) Defendants argue that this evidence 18 is not part of the public record. However, the transcripts of Mr. Chavez-Lopez’s phone 19 calls are on the docket and therefore, publicly accessible. See Kamakana v. City & Cnty. of 20 Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). Further, Plaintiffs’ counsel is on screen for 21 less than 30 seconds and all of her comments are public record. (Doc. No. 125 at 6.) Mr. 22 Chavez-Lopez’s phone calls nor Mr. Chavez-Lopez’s deposition testimony were marked 23 confidential pursuant to the Protective Order. (Id.) 24 Defendants request the Court to order Plaintiffs’ counsel to produce any and all 25 correspondence or communications, including documents provided, to any news outlet or 26 reporter so that Defendants may investigate additional breaches of the Protective Order. 27 (Doc. No. 123 at 9.) Defendants have not shown that any confidential material pursuant to 28 the Protective Order was utilized by the media. Plaintiffs’ counsel in the video clip did not 1 || state any information that was not already public record. Mr. Chavez-Lopez’s phone call 2 ||and deposition were not marked confidential pursuant to the Protective Order. Further, 3 || Plaintiff's counsel at the motion hearing assured the Court and Defendants’ counsel that 4 ||nothing was turned over to the media that was subject to a protective order or that any of 5 material was confidential. (Doc. No. 127 at 56:14.) Therefore, this is not the situation 6 warrants the Court ordering Plaintiffs to produce what was delivered to the media. 7 || Further, CoreCivic was well aware of the ABC News segment prior to it airing. CoreCivic 8 contacted for comment and in fact provided its own statement for the media. 9 || Defendants have not met the high standard that warrants a restraining order in this situation. 10 CONCLUSION 11 Based on the foregoing, the Court DENIES Defendants’ motion for restraining 12 || order. 13 14 || IT IS SO ORDERED. 13 Dated: September 17, 2019 | □□ iz : LE 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28