Robinson v. Madden

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RAYVONE ROBINSON, Case No.: 3:22-cv-01401-GPC-DEB CDCR #G33029, [12] ORDER: Plaintiff, [13] vs. 1) GRANTING MOTION TO [14] PROCEED IN FORMA PAUPERIS RAYMOND MADDEN, Warden; J. 15 [ECF No. 2] GALLEGOS; Correctional Counselor I; 16 FRANK SHARPE, Classification and 2) DENYING MOTION FOR Parole Representative; KATHLEEN 17 TEMPORARY RESTRAINING ALLISON, Secretary of CDCR, ORDER [ECF No. 3] 18 Defendants. 19 3) DISMISSING CLAIMS AND DEFENDANTS [20] 21 AND [22] 4) DIRECTING U.S. MARSHAL 23 TO EFFECT SERVICE OF COMPLAINT UPON REMAINING [24] DEFENDANTS PURSUANT TO 28 25 U.S.C. § 1915 (d) AND Fed. R. Civ. P. 4(c)(3) [26] 27 Rayvone Robinson (“Plaintiff” or “Robinson”), currently incarcerated at R.J. 28 Donovan Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights action 1 pursuant to 42 U.S.C. § 1983 together with a Motion to Proceed in Forma Pauperis (“IFP”). 2 See Compl., ECF No. 1; ECF No. 2, 4. He has also filed a Motion for a Temporary 3 Restraining Order (“TRO”). ECF No. 3. 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 11 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 12 Samuels, 577 U.S. 82 , 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 13 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 14 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 617 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2); 18 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 19 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 20 in the account for the past six months, or (b) the average monthly balance in the account 21 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 22 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having custody of the prisoner 23 then collects subsequent payments, assessed at 20% of the preceding month’s income, in [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec., 2020). The additional $52 administrative fee does not [28] 1 any month in which his account exceeds $10, and forwards those payments to the Court 2 until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, 577 U.S. at 84. 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 4 trust account statement and a Prison Certificate. See ECF No. 4; 28 U.S.C. § 1915 (a)(2); 5 S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119 . These documents show Plaintiff carried 6 an average monthly balance of $156.02, an average monthly deposit of $169.38 to his 7 account over the 6-month period immediately preceding the filing of his Complaint, and a 8 current balance of $35.11. See ECF No. 4 at 1. 9 Based on this accounting, the Court GRANTS Robinson’s IFP Motion (ECF No. 4) 10 and assesses an initial partial filing fee of $33.87 pursuant to 28 U.S.C. § 1915 (b)(1). 11 However, this initial fee need be collected only if sufficient funds are available in Plaintiff’s 12 account at the time this Order is executed. See 28 U.S.C. § 1915 (b)(4) (providing that “[i]n 13 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 14 action or criminal judgment for the reason that the prisoner has no assets and no means by 15 which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 16 (finding that 28 U.S.C. § 1915 (b)(4) acts as a “safety-valve” preventing dismissal of a 17 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available to 18 him when payment is ordered.”). The remaining balance of the $350 total fee owed in this 19 case must be collected by the Secretary of the California Department of Corrections and 20 Rehabilitation (“CDCR”), or any subsequent agency having custody of Plaintiff, and 21 forwarded to the Clerk of the Court pursuant to the installment payment provisions set out 22 in 28 U.S.C. § 1915 (b)(2). 23 II. Screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A 24 A. Standard of Review 25 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 26 preliminary screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). The Court must 27 review and sua sponte dismiss an IFP complaint, and any complaint filed by a prisoner 28 seeking redress from a governmental entity, or officer or employee of a governmental 1 entity, which is frivolous, malicious, fails to state a claim, or seeks damages from 2 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 3 (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002 , 1004 4 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 5 ensure that the targets of frivolous or malicious suits need not bear the expense of 6 responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler 7 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 12 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 20 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 22 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 23 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 B. Plaintiff’s Allegations 2 According to Robinson, he is currently serving a prison sentence for the murder of 3 a high level member of the Compton Crip gang. Compl., ECF No. 1 at 3–7.2 He claims that 4 prior to 2019, he was protected from violent attacks in prison by fellow members of the 5 Blood gang with which he was associated. Id. In 2019, Robinson disassociated himself 6 from the Bloods and was granted a Special Needs Yard (“SNY”) classification. Id. at 3–7, 7 12. Robinson alleges that, contrary to California Department of Corrections and 8 Rehabilitation (“CDCR”) regulations, the SNYs at level IV institutions where he was 9 previously housed were not free from Security Threat Group (“STG”) activities and he was 10 the victim of violent assaults while housed there after he refused to pay fellow inmates for 11 protection. Id. He further claims that while he was in RJD’s level IV SNY, he was subject 12 to extortion and assaults, but did not report these incidents because he “would have face[d] 13 possible death because ‘snitching’ is highly disfavored within the level IV prison 14 population.” Id. at 7. 15 In 2022, Robinson states he received a “behavior override placement.” Id. at 4, 12. 16 He is now housed at the level III SNY at RJD, which, according to Robinson, “does not 17 have any STG gang members who were carrying out violent assaults or extortion such as 18 [Robinson] was constantly subjected to in the level IV SNY facilities.” Id. at 4–5. In August 19 of 2022, Robinson claims defendant Gallegos told him he “[was] going to be taken to a 20 classification committee for transfer back to a level IV SNY facility due to Plaintiff 21 becoming involved in two incidents or altercations.” Id. at 5. Robinson claims he has 22 received information from another inmate that “if Plaintiff were to return [to a level IV 23 SNY] . . . he would be immediately removed,” which Robinson considers to be a threat of 24 violent assault. Id.; ECF No. 3-2 at 4–5 Robinson further claims that when he told 25 defendant Gallegos about his fears and threats to his safety, Gallegos “completely [28] 1 disregarded the risk to Plaintiff[’s] safety” and told Robinson “he would still be taking 2 Plaintiff to a classification committee for transfer to a level IV SNY facility.” Id. at 7. 3 In support of his motion for TRO, he has submitted a declaration in which he alleges 4 the Defendants “continue with their efforts to take this Plaintiff to classification committee 5 the week of 9-13-22 for transfer to a level IV SNY facility where Plaintiff has known 6 enemies he has identified to defendant J. Gallegos and this threat is being disregarded.” 7 ECF No. 3-2 at 2. Robinson states Defendants are seeking to transfer him to Mule Creek 8 State Prison where he alleges two enemies, who he names, are currently incarcerated. Id. 9 Robinson also alleges that Defendant Sharpe approved Gallegos’s actions, despite the risk 10 to his safety. Id. 11 Robinson filed an emergency grievance on August 27, 2022 explaining the reasons 12 for his fears about being transferred to a level IV SNY facility. ECF No. 3-2 at 4–5. The 13 CDCR replied to the grievance, saying review would be completed by October 29, 2022. 14 Id. at 3. 15 C. 42 U.S.C. § 1983 16 “Section 1983 creates a private right of action against individuals who, acting under 17 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, [18] 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 19 both (1) deprivation of a right secured by the Constitution and laws of the United States, 20 and (2) that the deprivation was committed by a person acting under color of state law.” 21 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 22 D. Discussion 23 “[P]rison officials have a duty [under the Eighth Amendment] . . . to protect 24 prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825 , 25 833 (1994); Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (citing Farmer, 511 U.S. 26 at 833); United States v. Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (“California’s … 27 prisoners may be murderers, rapists, drug dealers, and child molesters, but California is 28 responsible for protecting even those sorts of people from murder by other prisoners.”). In 1 order to state a plausible Eighth Amendment claim for relief, however, a Plaintiff must 2 allege facts sufficient to show that Defendants acted with “deliberate indifference.” Castro 3 v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016); Iqbal, 556 U.S. at 678 . “A 4 prison official acts with ‘deliberate indifference . . . only if the [prison official] knows of 5 and disregards an excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 6 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th 7 Cir. 2002)), overruled on other grounds by Castro, 833 F.3d at 1076 . “Under this standard, 8 the prison official must not only ‘be aware of facts from which the inference could be 9 drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 10 inference.’” Id. (quoting Farmer, 511 U.S. at 837 ) If a prisoner faces a substantial risk of 11 serious harm, he need not wait until he actually suffers an attack before asserting a 12 deliberate indifference or threat-to-safety claim. See Helling v. McKinney, 509 U.S. 25 , 33 13 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel 14 proposition.”). 15 1. Defendants Gallegos and Sharpe 16 According to Robinson, he told Gallegos about his fears for his safety and the threats 17 and physical violence he received as a target of STGs while in level IV SNY facilities but 18 Gallegos continued to seek a level IV SNY classification for Robinson. Compl., ECF No. 19 1 at 5, 7. In addition, Robinson alleges defendants, including Gallegos, are continuing to 20 seek classification for Robinson to a level IV SNY facility despite the fact that he has 21 known and identified enemies at Mule Creek State Prison where he alleges defendants are 22 seeking to transfer him. ECF No. 3-2 at 2. 23 Robinson’s allegations are sufficient to survive the “low threshold” set for sua sponte 24 screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). The allegations plausibly 25 allege an Eighth Amendment failure to protect claim because they show Gallegos was 26 “‘aware of facts from which the inference could be drawn that a substantial risk of serious 27 harm exist[ed],’” and drew that inference. Toguchi, 391 F.3d at 1057 (quoting Farmer, 511 28 U.S. at 837); Iqbal, 556 U.S. at 678 . Robinson also alleges that Sharpe “approved 1 [Gallegos’s efforts] to take [him] to the classification committee for transfer to a level IV 2 SNY facility, disregarding the risk to Plaintiff’s safety within those level IV SNY 3 facilities.” Compl., ECF No. 1 at 7. These allegations are also sufficient to plausibly allege 4 an Eighth Amendment failure to protect claim against Sharpe at the screening stage. Iqbal, [5] 556 U.S. at 678 . 6 2. Defendants Allison and Madden 7 As to defendants Allison and Madden, however, Robinson has failed to state a 8 plausible claim for relief. Iqbal, 556 U.S. at 678 . Robinson claims Allison, the Secretary 9 of the CDCR, and Madden, RJD Warden, violated his Eighth Amendment rights by failing 10 to enforce regulations which keep STG inmates from engaging in violent and threatening 11 activity in level IV SNY facilities. Compl., ECF No. 1 at 5–7. 12 There is no respondeat superior liability under 42 U.S.C. § 1983 . Palmer v. 13 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation 14 must be individualized and focus on the duties and responsibilities of each individual 15 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” 16 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362 , 17 370-71 (1976)). 18 In order state a plausible claim, Plaintiff must allege personal acts by each individual 19 Defendant which have a direct causal connection to the constitutional violation at issue. 20 See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040 , 21 1045 (9th Cir. 1989). As supervisors, Allison and Madden may only be held liable for the 22 allegedly unconstitutional violations of their subordinates if Robinson has alleged specific 23 facts which show: (1) how or to what extent Allison and Madden personally participated 24 in or directed the other Defendants’ actions, and (2) in either acting or failing to act, Allison 25 and Madden were an actual and proximate cause of the deprivation of his Eighth 26 Amendment rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently 27 pleaded, however, Robinson’s Complaint does not set forth facts which might be liberally 28 construed to support an individualized constitutional claim against Defendants Allison and 1 Madden. Further, Robinson has not plausibly alleged Allison and Madden “kn[ew] of and 2 disregard[ed] an excessive risk to [Robinson’s] health and safety.’” Toguchi, 391 F.3d at 3 1057. Thus, the Eighth Amendment claims against Allison and Madden must be dismissed 4 pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b)(1). 5 III. Motion for TRO and Preliminary Injunction 6 Plaintiff has also filed a Motion requesting a TRO and a hearing “preventing his 7 placement in those level IV institutions that pose a threat to his safety.” TRO, ECF No. 3, 8 3-2. In support of this motion, he has submitted a Declaration in which he alleges the 9 Defendants “continue with their efforts to take this Plaintiff to classification committee the 10 week of 9-13-22 for transfer to a level IV SNY facility where Plaintiff has known enemies 11 he has identified to defendant J. Gallegos and this threat is being disregarded.” ECF No. 312 2 at 2. Robinson alleges defendants are seeking to transfer him to Mule Creek State Prison 13 where he alleges two named enemies are currently incarcerated. Id. 14 He has also submitted a declaration by fellow inmate Carl Ethridge, who states that 15 in 2016, he overheard inmates discussing a threat to Robinson’s life by a “well known 16 Compton Crip” named “Grinch” while he was incarcerated at Salinas Valley State Prison. 17 ECF No. 3 at 4. Specifically, Ethridge states the inmates said “Compton Crip SNY STGs 18 had a ‘green light’3 on inmate Rayvone Robinson for being accused of the killing of a well19 known Compton Crip,” and that the inmates “made it clear that it was on sight with 20 Rayvone Robinson in any level IV . . . .” ECF No. 3 at 4. 21 A. Standard of Review 22 Procedurally, a federal district court may issue emergency injunctive relief only if it 23 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 24 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 25 that one “becomes a party officially, and is required to take action in that capacity, only [27] 3 According to Ethridge, “a green light is a[n] approval to assault someone on sight.” [28] 1 upon service of summons or other authority-asserting measure stating the time within 2 which the party served must appear to defend.”). The court may not attempt to determine 3 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 4 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983); Lathrop v. 5 Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 961 (M.D. Fl. 1993); 6 Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989); Suster v. Marshall, 952 7 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v. Yamasaki, 442 U.S. 682 , 702 8 (1979) (injunctive relief must be “narrowly tailored to give only the relief to which 9 plaintiffs are entitled”). Under Federal Rule of Civil Procedure 65(d)(2) an injunction binds 10 only “the parties to the action,” their “officers, agents, servants, employees, and attorneys,” 11 and “other persons who are in active concert or participation.” FED. R. CIV. P. 65(d)(2)(A)- 12 (C). 13 Substantively, “[a] preliminary injunction is an extraordinary remedy never awarded 14 as of right, and the grant of a preliminary injunction is a matter committed to the discretion 15 of the trial judge[.]” Epona v. Cty. of Ventura, 876 F.3d 1214, 1227 (9th Cir. 2017) (internal 16 quotation marks and citations omitted). “‘A plaintiff seeking a preliminary injunction must 17 establish that he is likely to succeed on the merits, that he is likely to suffer irreparable 18 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and 19 that an injunction is in the public interest.” Glossip v. Gross, 576 U.S.863, 876 (2015) 20 (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)). 21 “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in 22 order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 23 F.3d 1127, 1131 (9th Cir. 2011). 24 In addition, the Prison Litigation Reform Act (“PLRA”) requires prisoners to satisfy 25 additional requirements when seeking preliminary injunctive relief against prison officials: 26 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires [27] preliminary relief, and be the least intrusive means necessary to 28 correct that harm. The court shall give substantial weight to any 1 adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect [2] the principles of comity set out in paragraph (1)(B) in tailoring 3 any preliminary relief. [4] 18 U.S.C. § 3626 (a)(2). 5 Section 3626(a)(2) places significant limits upon a court’s power to grant 6 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity 7 jurisdiction of federal courts and to protect the bargaining power of prison administrators— 8 no longer may courts grant or approve relief that binds prison administrators to do more 9 than the constitutional minimum.” Gilmore v. People of the State of California, 220 F.3d 10 987, 998-99 (9th Cir. 2000). 11 B. Application to Plaintiff’s Case 12 First, the Court notes Plaintiff’s case is still in its preliminary screening stage, the 13 United States Marshal has yet to effect service on his behalf, and Defendants have no actual 14 notice. Therefore, the Court has no personal jurisdiction over any Defendant at this time. 15 See Fed. R. Civ. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350 ; Zepeda, 753 F.2d at 727 - 16 28. 17 Second, even if the Court had personal jurisdiction over defendants, Robinson has 18 failed to establish the imminent irreparable harm required to support a preliminary 19 injunction. See Winter, 555 U.S. at 20 ; Alliance for the Wild Rockies, 632 F.3d at 1131. 20 “The fact that plaintiff has met the pleading requirements allowing him to proceed with the 21 complaint does not, ipso facto, entitle him to a preliminary injunction.” Claiborne v. 22 Blauser, No. CIV S-10-2427 LKK, 2011 WL 3875892 , at *8 (E.D. Cal. Aug. 31, 2011), 23 report and recommendation adopted, No. CIV S-10-2427 LKK, 2011 WL 4765000 (E.D. 24 Cal. Sept. 29, 2011). Instead, to meet the “irreparable harm” requirement, Plaintiff must do 25 more than plausibly allege imminent harm; he must demonstrate it. Caribbean Marine 26 Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires Plaintiff to 27 demonstrate by specific facts that there is a credible threat of immediate and irreparable [28] 1 harm. Fed. R. Civ. P. 65(b). “Speculative injury does not constitute irreparable injury 2 sufficient to warrant granting a preliminary injunction.” Id. at 674-75 . 3 Here, Plaintiff claims he is “threatened with an imminent threat of irreparable harm 4 of serious injury or death if he is transferred to a level IV [SNY facility],” and that 5 “defendants are failing to protect him from a risk of assault or death by their efforts to 6 transfer Plaintiff to a level IV institution . . . where the level IV . . . SNY security threat 7 group gang members who wish to do Plaintiff serious harm are confined at.” ECF No. 3 at 8 2. But Robinson admits he has not been reclassified at this time, nor has a transfer order 9 been issued. See Compl., ECF No. 1 at 7; ECF 3-2 at 2. Thus, his allegations of potential 10 harm and risk of injury are speculative, see Caribbean Marine, 844 F.2d at 674–75, and 11 while Plaintiff may fear for his future safety as a result of a possible future transfer to a 12 level IV SNY, he has failed to establish that he faces the immediate and credible threat of 13 irreparable harm necessary to justify injunctive relief at this stage of the case. Lyons, 461 14 U.S. at 102; Goldie’s Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 466 , 472 15 (9th Cir. 1984) (“Speculative injury does not constitute irreparable injury.”). Rigsby v. 16 State, No. CV 11-1696-PHX-DGC, 2013 WL 1283778 , at *5 (D. Ariz. Mar. 28, 2013) 17 (denying prisoner’s TRO based on fear of potential future injury based on past assaults); 18 Chappell v. Stankorb, No. 1:11-CV-01425-LJO, 2012 WL 1413889 , at *2 (E.D. Cal. Apr. 19 23, 2012) (denying injunctive relief where prisoner’s claims of injury based on current or 20 future housing decisions were nothing “more than speculative.”), report and 21 recommendation adopted, No. 1:11-CV-01425-LJO, 2012 WL 2839816 (E.D. Cal. July 9, 22 2012). A presently existing actual threat must be shown, even though injury need not be 23 certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 , 130-31 24 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean Marine, 844 25 F.2d at 674. 26 Thus, for all these reasons, the Court denies Plaintiff’s TRO motion (ECF No. 3) 27 pursuant to Fed. R. Civ. P. 65 at this time. 28 / / / 1 IV. Conclusion and Orders 2 For all the reasons discussed, the Court hereby: 3 (1) GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 4 (ECF No. 2); 5 (2) DIRECTS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s prison trust account the initial $33.87 partial filing fee assessed by this Order, if 7 sufficient funds exist at the time this Order is executed, and to forward the remainder of 8 the $350 filing fee owed in this case by garnishing monthly payments from his account in 9 an amount equal to twenty percent (20%) of the preceding month’s income and forwarding 10 those payments to the Clerk of the Court each time the amount in the account exceeds $10 11 pursuant to 28 U.S.C. § 1915 (b)(2). ALL PAYMENTS MUST BE CLEARLY 12 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION; 13 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 14 on Kathleen Alison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 9428315 0001, or by forwarding an electronic version to trusthelpdesk@cdcr.ca.gov; 16 (4) DISMISSES Defendants Allison and Madden without prejudice based on 17 Plaintiff’s failure to state a claim against them pursuant to 28 U.S.C. § 1915 (e)(2) and 18 § 1915A(b); 19 (5) DENIES Plaintiff’s Motion for TRO [ECF No. 3] pursuant to Fed. R. Civ. P. 20 65; 21 (6) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 22 1) upon Defendants GALLEGOS and SHARPE and forward it to Plaintiff along with a 23 blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk will 24 provide Plaintiff with a certified copy of this Order, his Complaint (ECF No. 1), and the 25 summons so that he may serve them upon each of these Defendants. Upon receipt of this 26 “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately as 27 possible, include an address where Defendants Gallegos and Sharpe may be served, see [28] 1 S.D. Cal. CivLR 4.1.c, and return them to the United States Marshal according to the 2 instructions the Clerk provides in the letter accompanying his IFP package. 3 (7) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 4 upon Defendants Gallegos and Sharpe as directed by Plaintiff on the USM Form 285s 5 provided to him. All costs of that service will be advanced by the United States. See 28 6 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3). 7 (8) ORDERS Defendants Gallegos and Sharpe, once served, to reply to 8 Plaintiff’s Complaint and any subsequent pleading Plaintiff files in the matter in which 9 Gallegos and Sharpe are named as parties within the time provided by the applicable 10 provisions of Federal Rules of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. 11 § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to reply 12 to any action brought by a prisoner confined in any jail, prison, or other correctional facility 13 under section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 14 U.S.C. § 1915 (e)(2) and § 1915A(b), and thus, has made a preliminary determination based 15 on the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on 16 the merits,” defendant is required to respond). 17 (9) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 18 serve upon Defendants Gallegos and Sharpe, or, if appearance has been entered by counsel, 19 upon Defendants’ counsel, a copy of every further pleading, motion, or other document 20 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 21 include with every original document he seeks to file with the Clerk of the Court, a 22 certificate stating the manner in which a true and correct copy of that document was served 23 on these Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 24 Any document received by the Court which has not been properly filed with the Clerk, or 25 / / / 26 / / / 27 / / / 28 / / / 1 || which fails to include a Certificate of Service upon Defendants Gallegos and Sharpe, may 2 || be disregarded. 3 IT IS SO ORDERED. 4 ||Dated: September 19, 2022 72 + 5 Hon. athe Coke 6 United States District Judge [28] 15 ee