Opinion
No. CIV S-07-0375 GEB GGH P.
November 21, 2008
FINDINGS RECOMMENDATIONS
I. Introduction
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's August 15, 2008, motion for a temporary restraining order. Also pending is plaintiff's related August 26, 2008, motion to stay his transfer from California State Prison-Solano (CSP-Solano).
On September 8, 2008, defendants filed a response to plaintiff's motion for injunctive relief. After carefully considering the record, the court recommends that plaintiff's motions be denied.
II. Legal Standards for Injunctive Relief
The legal principles applicable to a request for preliminary injunctive relief are well established. "The traditional equitable criteria for granting preliminary injunctive relief are (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." Dollar Rent A Car v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th Cir. 1985). The criteria are traditionally treated as alternative tests. "Alternatively, a court may issue a preliminary injunction if the moving party demonstrates `either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984) (quoting William Inglis Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975)). The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, preliminary injunctive relief should be denied:
Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits."Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin, 740 F.2d at 675).
Analysis
On January 22, 2008, plaintiff filed a motion for injunctive relief in the instant action claiming that he was forced to sleep on a contaminated mattress. On July 30, 2008, an evidentiary hearing was held as to this motion. Plaintiff appeared in pro se. Defendants were represented by Deputy Attorney General Ellen Hung. On August 6, 2008, the court recommended that plaintiff's January 22, 2008, motion for injunctive relief be denied. On September 25, 2008, the district court adopted these findings and recommendations.
In the pending motion for injunctive relief filed August 15, 2008, plaintiff alleges that on August 13, 2008, Correctional Counselor Romero told him that Attorney Hung had told prison officials at CSP-Solano to transfer plaintiff away frm that prison. Plaintiff suggests that this proposed transfer was in retaliation for his prosecution of the instant action and, in particular, the January 22, 2008, motion for injunctive relief. Plaintiff's August 26, 2008, motion to stay contains the same allegations.
In their opposition filed September 8, 2008, defendants state that plaintiff's proposed transfer is not in retaliation for his legal activities. In support of this claim, defendants refer to the declaration of CSP-Solano Facility Captain Flores who states that retrofit work is planned for CSP-Solano. Opposition, Exhibit A, ¶ 3. To accommodate the retrofit work, 120 inmates classified as eligible for Close Custody Level II and Medium A Level II had to be processed for transfer to a different prison. Id., ¶ 4. A partial list of inmates for potential transfer from CSP-Solano was generated by the Classification Services Unit (CSU) at California Department of Corrections and Rehabilitation (CDCR) headquarters from the inmates' classifications. Id., ¶ 5. Plaintiff's name was on this list. Id.
Shortly after August 13, 2008, Correctional Counselor Romero spoke with Litigation Coordinator Lewis regarding whether it would be acceptable to proceed with plaintiff's transfer. Defendants' Opposition, Exhibit C, Romero Declaration, ¶ 8. Ms. Lewis advised Romero that she saw no reason that plaintiff could not be processed for transfer, but that she would double check with the Deputy Attorney General assigned to plaintiff's case and get back to him. Id. Shortly after August 13, 2008, Ms. Lewis told Romero that she had confirmed with the Deputy Attorney General handling the case that there was no legal basis to prevent the processing of plaintiff's transfer. Id., ¶ 9.
In her declaration attached to the opposition, Deputy Attorney General Hung states that she had no knowledge that plaintiff was being considered for transfer until August 7, 2008, when Litigation Coordinator Lewis sent her an email advising that plaintiff's file was being reviewed for a potential transfer. Hung Declaration, ¶ 3. Ms. Lewis inquired as to whether there was a reason, due to a court order or other legal issue, that plaintiff could not be transferred while his lawsuit was pending.Id. On August 11, 2008, Deputy Attorney General Hung notified Ms. Lewis that there was no court order or legal reason prohibiting plaintiff's transfer during the pendency of his lawsuit, but noted if any future court appearances were required, CDCR would be obligated to transport plaintiff to Sacramento.Id., ¶ 4.
After plaintiff filed his pending motion for injunctive relief, Deputy Attorney General Hung spoke with Ms. Lewis to inquire about the transfer process and why plaintiff was being considered for transfer. Id., ¶ 5. Ms. Lewis advised Deputy Attorney General Hung that cell doors at CSP-Solano were to be retrofitted and this required transferring inmates with qualifying classification scores for population control. Id. Plaintiff's classification score made him eligible for a transfer. Id.
Allegations that prison officials transferred a prisoner in retaliation for legal activities states a colorable claim for relief. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: 1) an assertion that a state actor took some adverse action against an inmate, 2) because of, 3) that prisoner's protected conduct, and that such action, 4) chilled the inmates's exercise of his First Amendment rights, and, 5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
In the instant case, the record demonstrates that the decision to transfer plaintiff was not made in retaliation for his legal activities. Rather, the decision to transfer plaintiff was based on the need to transfer inmates in order to accommodate retrofitting occurring at CSP-Solano. The proposed transfer reasonably advanced a legitimate correctional goal. By simply rasing the contemporaneous nature of the proposed transfer and plaintiff's previous motion, and in light of the record, plaintiff does not raise even serious questions about retaliation. Plaintiff's motions should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's August 15, 2008, motion for a temporary restraining order (# 62) and August 26, 2008, motion to stay his transfer (#68) 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 twenty 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." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst 951 F.2d 1153 (9th Cir. 1991).