prison officials are entitled to substantial 12 deference
How later courts described this case
- prison officials are entitled to substantial 12 deference
- suggesting that federal courts 13 should be reluctant to involve themselves in the day-to-day management of prisons
- “Where a state penal system is involved, 15 federal courts have . . . additional reason to accord deference to the appropriate prison 16 authorities.” (citation omitted)
- standards for 10 issuing a TRO are “substantially identical” to those for issuing a preliminary injunction
Written by the judges who cited it.
The opinion
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7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 HENRY A. JONES, Jr., Case No.: 3:20-cv-00453-GPC-RBM
CDCR No. P-69574,
12
ORDER:
Plaintiff,
13
vs. (1) DENYING MOTION TO
14
PROCEED IN FORMA PAUPERIS
15 AS BARRED BY 28 U.S.C. § 1915(g)
L. TERRONEZ, Correctional Officer; T. (ECF No. 2);
16
RUCKER, Correctional Officer;
17 CAPTAIN JACKSON; JOHN DOE, (2) DENYING MOTION FOR
I.S.U. Investigation Unit, TEMPORARY RESTRAINING
18
Defendants. ORDER (ECF No. 9);
19
(3) DISMISSING CIVIL ACTION
20
WITHOUT PREJUDICE FOR
21 FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a);
22
23 AND
24
(4) DENYING AS MOOT MOTION
25 FOR LEAVE TO FILE
SUPPLEMENTAL COMPLAINT
26
AND ADD DEFENDANTS (ECF No.
27 10)
28
1 Plaintiff Henry A. Jones, Jr.., currently incarcerated at the Richard J. Donovan
2 Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights Complaint
3 pursuant to 42 U.S.C. Section 1983. (See Compl., ECF No. 1). Plaintiff alleges that he
4 was sexually assaulted by a correctional officer during a cell search in retaliation for
5 Plaintiff “making [p]rep[a]rations to be a witness in a criminal investigation into the death
6 of an inmate . . . .” (See id. at 3, 11.) After Plaintiff told officials that he planned to file a
7 complaint under the Prison Rape Elimination Act (“PREA”), 42 U.S.C. Section 15601, et
8 seq., a group of correctional officers allegedly conspired to retaliate against Plaintiff by
9 disposing of or giving away Plaintiff’s personal property, blocking his phone calls, and
10 failing to report the incident in a manner allegedly required by PREA. (See id. at 3-5.) In
11 addition to these claims, attached to Plaintiff’s Complaint is a self-styled “Lien Complaint”
12 related to the mental health treatment Plaintiff is receiving at RJD and which purports to
13 “arise[] under” the Americans with Disabilities Act (“ADA”), 42 U.S.C. Section 12101, et
14 seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. Section 701, et seq., among other
15 federal statutes. (See id. at 9-10.)
16 After filing the Complaint, Plaintiff filed a Motion for Leave to File Supplemental
17 Complaint seeking to add additional details about the alleged sexual assault and subsequent
18 retaliation, and to add as parties additional Defendants who allegedly participated in the
19 retaliation conspiracy against Plaintiff by rejecting his administrative appeals and failing
20 to return certain documents to Plaintiff. (See ECF No. 10.) Additionally, Plaintiff filed a
21 Motion for Temporary Restraining Order (“TRO”) seeking an order enjoining further acts
22 of retaliation and directing that Plaintiff be transferred out of RJD because he is “part of an
23 ongoing investigation, on state and Federal Level,” which “may place [his] life in imminate
24 [sic] danger.” (See ECF No. 9, at 4.)
25 Jones has not prepaid the civil filing fee required by 28 U.S.C. Section 1914(a);
26 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 2.)
27 ///
28 ///
1 I. Motion to Proceed IFP
2 A. Standard of Review
3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty.
4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however,
5 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full
6 amount of a filing fee,” in “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b),
7 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform
8 Act (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP:
9 . . . if [a] prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
10
appeal in a court of the United States that was dismissed on the
11 grounds that it is frivolous, malicious, or fails to state a claim
upon which relief can be granted, unless the prisoner is under
12
imminent danger of serious physical injury.
13
14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”
17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter
18 “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought
19 unsuccessful suits may entirely be barred from IFP status under the three strikes
20 rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing
21 frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312
22 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims
23 dismissed both before and after the statute’s effective date.” Id. at 1311.
24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which
25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”
26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court
27 styles such dismissal as a denial of the prisoner’s application to file the action without
28 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
1 When courts “review a dismissal to determine whether it counts as a strike, the style of the
2 dismissal or the procedural posture is immaterial. Instead, the central question is whether
3 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-
4 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738
5 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single
6 action,” however, courts may “assess a PLRA strike only when the case as a whole is
7 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152
8 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th
9 Cir. 2016)).
10 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g)
11 from pursuing any other IFP action in federal court unless he can show he is facing
12 “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493
13 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a
14 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at
15 the time of filing.”).
16 B. Discussion
17 1. Imminent Danger Exception
18 Plaintiff’s Complaint, Motion for Leave to File Supplemental Complaint, and
19 Motion for TRO do not contain “plausible allegations” to suggest that he “faced ‘imminent
20 danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055
21 (quoting 28 U.S.C. § 1915(g)). Plaintiff alleges a conspiracy among prison officials that
22 led to Defendant Terronez’s alleged sexual assault of Plaintiff, as well as efforts by
23 Defendants Rucker, Jackson, and the unnamed members of the “I.S.U. Office” to take
24 Plaintiff’s personal property and to block his phone calls outside the prison. (See Compl.
25 at 3-5, 12.) Defendants allegedly took these steps because Plaintiff is “a Witness in the
26 death of an inmate who these two def[endants] L. Terronez and T. [Rucker] [were] involved
27 in,” and because, after Defendant Terronez allegedly fondled Plaintiff’s genitals during a
28 cell search on February 22, 2020, Plaintiff threatened to file a PREA complaint. (See id.
1 at 3, 7.) Additionally, the Complaint includes general allegations that the prison’s mental
2 health treatment programs violate the ADA and Rehabilitation Act in an unspecified
3 manner apparently not connected to the alleged retaliation. (See id. at 9-10.) In his Motion
4 for Leave to File a Supplemental Complaint, Plaintiff adds allegations against additional
5 prison officials who reviewed his administrative grievances related to the alleged assault
6 and a Rule Violation Report (“RVR”) filed against Plaintiff, arguing that these additional
7 officials are retaliating against Plaintiff by rejecting documents he submits and failing to
8 return documentation necessary for Plaintiff to exhaust his administrative remedies. (See
9 ECF No. 10, at 1-3.)
10 Plaintiff repeatedly asserts that these allegations show that he is in imminent danger.
11 Specifically, Plaintiff states that as a result of him “not drop[p]ing the Prea Alligation [sic]
12 and the staff misconduct, and now the [p]hone situation, I truly feel that [m]y life is in
13 immin[ent] dan[g]er . . . .” (See Compl. at 8; see also id. at 13 (“[B]ecause the large sc[ale]
14 of corruption, and me being a witness to [another] criminal investigation, and [I] practice
15 law, [I] am deemed a threat, [a]nd my life is in [imminent] danger.”).) In the request for
16 relief contained in his Complaint, Plaintiff asks for an order “TO REMOVE ME FROM
17 DANGER” by transferring him to another facility. (See id. at 7 (emphasis in original); see
18 also id. at 5 (“I believe [m]y life is in danger. I’[m] [r]equesting [a] TRO. Requesting this
19 [i]nstitution [t]ransfer[] me from this [i]nstitution.”).) In his separate Motion for TRO,
20 Plaintiff repeats similar concerns and adds some allegations about safety in the institution
21 more generally, recounting a past incident in which Defendant Terronez allegedly left a
22 knife on the ground where inmates could access it, concluding that “this [f]acility is
23 danger[ous], and [I] ask this court to transfer me from this [f]acility.” (See ECF No. 9, at
24 3.) Plaintiff also describes some communications he has allegedly had with the FBI
25 regarding its investigation of the death of another inmate, explaining that “because [he is]
26 part of an ongoing investigation, on state and [f]ederal [l]evel, it may place my life in
27 [imminent] danger.” (See id. at 4.) Concluding his Motion, Plaintiff states that he “want[s]
28 to be not retaliated, and psychologi[c]ally tormented against [sic], and [to receive adequate]
1 treatment,” and that if he remains in the prison his life is “in immin[ent] Danger.” (See
2 id. at 5 (emphasis in original).)
3 Plaintiff does not plausibly allege in any of his filings that he is being imminently
4 targeted for physical harm, is subject to any impending attack, or that he is facing any
5 viable danger. To qualify for Section 1915(g)’s imminent danger exception, the danger
6 Plaintiff alleges that he faces must be real, proximate, and/or ongoing at the time he filed
7 his Complaint. See Cervantes, 493 F.3d at 1056; Ciarpaglini v. Saini, 352 F.3d 328, 330
8 (7th Cir. 2003) (“[T]he harm must be imminent or occurring at the time the complaint is
9 filed.”). Speculation, like Plaintiff’s assertion that his involvement in an ongoing
10 investigation “may place [his] life in [imminent] danger,” (See ECF No. 9, at 4 (emphasis
11 added)), incidents of past harm, or the possibility of retaliation, particularly non-physical
12 forms of retaliation like withholding documents or filing disciplinary charges against
13 Plaintiff, are insufficient. See Cervantes, 493 F.3d at 1057 n.11 (“[A]ssertions of imminent
14 danger of less obviously injurious practices may be rejected as overly speculative or
15 fanciful, when they are supported by implausible or untrue allegations . . . .”); see also,
16 e.g., Sierra v. Woodford, No. 1:07-cv-149 LJO GSA (PC), 2010 WL 1657493, at *3 (E.D.
17 Cal. Apr. 23, 2010) (“long, narrative, rambling statements regarding a cycle of violence
18 and vague references to motives to harm” are insufficient to show the prisoner faced
19 “ongoing danger” as required by Cervantes); George v. United States, No. 3:19-cv-01557-
20 BAS-BLM, 2019 WL 4962979, at *2 (S.D. Cal. Oct. 7, 2019) (alleging “a vast conspiracy
21 involving surveillance, harassment, and intimidation undertaken at the hands of both the
22 state and federal governments” to retaliate against the plaintiff before, during, and after
23 incarceration insufficient to satisfy Section 1915(g)). The only physical harm Plaintiff
24 alleges, the assault by Defendant Terronez, occurred weeks prior to filing the Complaint,
25 and Plaintiff offers nothing more than conclusory allegations that he faced any imminent
26 threat of further physical injury at the time he filed the Complaint or Motions for TRO or
27 to File a Supplemental Complaint. See Cervantes, 493 F.3d at 1055; see also Martin v.
28 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (“[C]onclusory assertions” are “insufficient
1 to invoke the exception to § 1915(g).”); Law v. Austin, No. 2:17-cv-2060 JAM AC P, 2020
2 WL 373575, at *6 (E.D. Cal. Jan. 23, 2020) (“Plaintiff’s fear” that correctional officer
3 would sexually assault plaintiff again “no matter how real, does not demonstrate an
4 imminent threat or ‘high probability’ of further sexual assault existed.”); Welch v. Fisher,
5 No. 9:07-CV-0929 (TJM)(DEP), 2007 WL 3231992, at *2 (N.D.N.Y. Oct. 30, 2007)
6 (alleging conspiracy on behalf of prison officials to prevent plaintiff from testifying in
7 federal investigations and retaliation in the form of threats of disciplinary charges did not
8 show imminent danger of serious physical injury). Although the issues Plaintiff alleges
9 with the prison phones and grievance system were apparently ongoing at the time the
10 Complaint or Motion for Leave to File a Supplemental Complaint were filed, these
11 allegations do not rise to the level of “imminent danger of serious physical injury.” See,
12 e.g., Moore v. Bishoff, No. CV 17-08188-PCT-DLR (JZB), 2017 WL 6883923, at *2 (D.
13 Ariz. Nov. 9, 2017) (denial of phone access and allegations of ineffective grievance system,
14 among other things, did not demonstrate imminent danger of serious physical injury).
15 While Defendants typically carry the initial burden to produce evidence
16 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district
17 court docket may be sufficient to show that a prior dismissal satisfies at least one on the
18 criteria under § 1915(g) and therefore counts as a strike.” See Andrews, 398 F.3d at 1119-
19 20. That is the case here.
20 Based on the dockets of many court proceedings available on PACER,1 the Court
21 finds that Plaintiff Henry A. Jones, Jr., currently identified as CDCR Inmate #P-69574, has
22 had at least five prior prisoner civil actions dismissed on the grounds that they were
23
24
25 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA-
WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d
26 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D.
Cal. 2015), and “‘may take notice of proceedings in other courts, both within and without the federal
27 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225
(quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex
28
1 frivolous, malicious, or failed to state a claim upon which relief may be granted.
2 They are:
3 (1) Jones v. Pregerson, et al.., No. 2:15-cv-6797-MWF-PLA (C.D. Cal. Dec.
4, 2015) (Order denying motion to proceed IFP and dismissing complaint on
4
the grounds that, among other things, it is “[f]rivolous, malicious, or fails to
5 state a claim”) (ECF No. 16)) (strike one);
6
(2) Jones v. Pregerson, et al., No. 2:16-cv-0409-TJH-MRW (C.D. Cal. Jan.
7 27, 2016) (Order denying motion to proceed IFP and dismissing complaint on
the grounds that, among other things, it is “[f]rivolous, malicious, or fails to
8
state a claim upon which relief may be granted” (ECF No. 12)) (strike two);
9
(3) Jones v. Wu, No. 2:16-cv-2698-DDP-SS (C.D. Cal. Oct. 4, 2016) (Order
10
denying motion to proceed IFP and dismissing complaint on the grounds that,
11 among other things, it is “[f]rivolous, malicious, or fails to state a claim upon
which relief may be granted” (ECF No. 5)) (strike three);
12
13 (4) Jones v. Pregerson, et al.., No. 2:16-cv-7978-PA-JEM (C.D. Cal. Nov. 8,
2016) (Order denying motion to proceed IFP and dismissing complaint on the
14
grounds that, among other things, it is “[f]rivolous, malicious, or fails to state
15 a claim upon which relief may be granted (ECF No. 16)) (strike four)); and
16
(5) Jones v. Pregerson, et al., No. 2:19-cv-7875-GW-JEM (C.D. Cal. Nov.
17 4, 2019) (Order denying motion to proceed IFP and dismissing case on the
grounds that, among other things, it is “[f]rivolous, malicious, or fails to state
18
a claim upon which relief may be granted” and Plaintiff’s claims were barred
19 by the three strikes provision of Section 1915(g) (ECF No. 11)) (strike five).
20 Accordingly, because Plaintiff has, while incarcerated, accumulated at least
21 four “strikes” as defined by Section 1915(g), and he fails to make a “plausible
22 allegation” that he faced imminent danger of serious physical injury at the time he
23 filed his Complaint, he is not entitled to the privilege of proceeding IFP in this action.
24 See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C.
25 Section 1915(g) “does not prevent all prisoners from accessing the courts; it only
26 precludes prisoners with a history of abusing the legal system from continuing to
27 abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221,
28 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is itself a matter of
1 privilege and not right.”).
2 II. Remaining Motions
3 A. Motion for Temporary Restraining Order
4 In addition to his Motion for Leave to Proceed IFP, Plaintiff seeks immediate
5 injunctive relief pursuant to Federal Rule of Civil Procedure 65 ordering him transferred
6 from RJD “according to §115.67(b) ‘PREA’) [sic]” and directing that Plaintiff “be not
7 retaliated[] and psychologically tormented against, and [receive] adequ[ate] treatment.”
8 (See ECF No. 9, at 1, 3, 5.) Plaintiff argues that he is experiencing significant stress in the
9 wake of the alleged sexual assault by Defendant Terronez, and that according to Section
10 115.67(b) of the “prea Manual,” “the agency shall employ multiple protection measures,
11 such as housing changes or transfers for inmate victims or abusers,removal [sic] of alleged
12 staff or inmate abusers from contact with vict[i]ms,and [sic] emotional support service for
13 inmate or staff who fear retaliation for reporting sexual abuse or sexual harassment.” (See
14 ECF No. 9, at 1.) Plaintiff also reiterates the allegations in his Complaint regarding his
15 phone calls being blocked, recounts a 2019 incident in which Defendant Terronez failed to
16 retrieve a weapon from the ground after breaking up a fight between two inmates,
17 potentially endangering Plaintiff and others, and asserts that certain conduct during recent
18 administrative proceedings demonstrates that prison officials “conspired to violate
19 [Plaintiff’s] rights.” (See id. at 1-3.)
20 First, even if Plaintiff were entitled to proceed IFP in this case, to the extent he seeks
21 a TRO without notice upon an adverse party, he cannot prevail because his submission fails
22 to set out “specific facts in an affidavit or a verified complaint . . . [which] clearly show
23 that immediate and irreparable injury, loss, or damage will result . . . before the adverse
24 party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A); Gomez v. Vernon, 255 F.3d
25 1118, 1128 (9th Cir. 2001) (“[I]njunctive relief is ‘to be used sparingly, and only in a clear
26 and plain case,’” especially when the court is asked to enjoin the conduct of a state agency)
27 (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976)). That said, Plaintiff’s Motion does
28 appear to contemplate notice upon an adverse party. (See ECF No. 9, at 3 (requesting an
1 order pursuant to Rule 65(a) “[s]oon after Counsel may be heard . . . .).)
2 Second, a plaintiff seeking a preliminary injunction must establish: (1) a likelihood
3 of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the
4 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that
5 an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
6 (2008). “The standard for issuing a temporary restraining order is identical to the standard
7 for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes
8 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Int’l Sales Co.,
9 Inc. v. John D. Brushy & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (standards for
10 issuing a TRO are “substantially identical” to those for issuing a preliminary injunction).
11 Plaintiff fails to satisfy these requirements. Plaintiff has not shown a likelihood of
12 success on the merits of his claim that the Court should order his transfer to another
13 institution. See Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (“[A]t an
14 irreducible minimum the moving party must demonstrate a fair chance of success on the
15 merits . . . .”) Prisoners have no constitutional right to incarceration in a particular prison,
16 see Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983), and the PREA regulation on which
17 Plaintiff relies, 28 C.F.R. Section 115.67(b), does not require Plaintiff be transferred either.
18 Although Section 115.67(b) requires prisons to protect inmates from sexual assault by staff
19 members, the regulation “do[es] not prescribe any specific steps an agency must take.” See
20 Peterson v. Martinez, No. 3:19-cv-1447-WHO, 2020 WL 999832, at *8 (N.D. Cal. Mar. 2,
21 2020) (citing 28 C.F.R. § 115.62). As for Plaintiff’s claim that the Court should issue a
22 TRO enjoining further acts of retaliation or directing that Plaintiff not be “psychologically
23 tormented . . . , and [receive] adequ[ate] treatment,” (ECF No. 9, at 5), Plaintiff’s claims
24 are too speculative to support the notion that such retaliation or inadequate treatment is
25 imminent. See, e.g., Haynes v. Biaggini, No. 2:16-cv-1949-ODW (JEMx), 2019 WL
26 5209246, at *2 (C.D. Cal. Oct. 16, 2019) (declining to issue a TRO against future acts of
27 retaliation where Plaintiff agreed to testify against a correctional officer because the
28 plaintiff did not “sufficiently link hypothetical future testimony to the hypothetical future
1 harm.”); see also Lee v. Oregon, 107 F.3d 1382, 1389 (9th Cir. 1997) (explaining that
2 courts in the Ninth Circuit “have repeatedly found a lack of standing where the litigant’s
3 claim rests upon a chain or speculative contingencies.”).
4 Even if Plaintiff could show a likelihood of success on the merits, he also fails to
5 show irreparable injury. As discussed above, Plaintiff’s allegations that he is in danger are
6 conclusory and speculative. “Speculative injury does not constitute irreparable injury
7 sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. Co.,
8 Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). And given the latitude afforded to
9 states in the day-to-day management of prisons, including housing decisions, Plaintiff has
10 not shown that the balance of the equities and public interest weigh in his favor. See
11 Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (prison officials are entitled to substantial
12 deference); Sandin v. Connor, 515 U.S. 472, 482-83 (1995) (suggesting that federal courts
13 should be reluctant to involve themselves in the day-to-day management of prisons);
14 Turner v. Safley, 482 U.S. 78, 84-85 (1987) (“Where a state penal system is involved,
15 federal courts have . . . additional reason to accord deference to the appropriate prison
16 authorities.” (citation omitted)).
17 As a result, Plaintiff’s Motion for TRO (ECF No. 9) must be denied.
18 B. Motion for Leave to File Supplemental Complaint
19 As previously explained, Plaintiff is not entitled to proceed IFP in this action
20 pursuant to 28 U.S.C. Section 1915(g). This conclusion is not altered by the contents of
21 Plaintiff’s Motion for Leave to File Supplemental Complaint which, like Plaintiff’s
22 Complaint and Motion for TRO, does not contain plausible allegations that Plaintiff is in
23 imminent danger of physical harm as required by Section 1915(g). In light of the Court’s
24 dismissal of Plaintiff’s action as barred by Section 1915(g), Plaintiff’s Motion for Leave
25 to File Supplemental Complaint (ECF No. 10) is denied as moot. See Hall v. Guila, Civ.
26 No. 11-cv-2661 BEN (WVG), 2012 WL 827074, at *3 (S.D. Cal. Mar. 9, 2012) (denying
27 as moot motion to file a supplemental complaint in light of dismissal of plaintiff’s action).
28 ///
1 Conclusion and Orders
2 For the reasons set forth above, the Court:
3 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28
4 |/U.S.C. Section 1915(g);
5 (2) DENIES Plaintiff's Motion for Temporary Restraining Order (ECF No. 9);
6 (3) DENIES AS MOOT Plaintiff's Motion for Leave to File a Supplemental
7 ||Complaint (ECF No. 10);
8 (4) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant
9 to 28 U.S.C. Section 1915(a)(3); and
10 (5) DIRECTS the Clerk of the Court to close the file.
11 IT IS SO ORDERED.
12 || Dated: May 14, 2020 (2
13 Hon. athe Ck
14 United States District Judge
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