The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 GERALD J. WILSON, Case No.: 3:23-cv-00250-RBM-DDL
CDCR #B93800,
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ORDER:
Plaintiff,
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vs. (1) DENYING MOTION FOR
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PRELIMINARY INJUNCTION [Doc.
J. SANTANA, et al.,
15 19];
16 Defendants.
(2) DENYING MOTION FOR
17 DEFAULT [Doc. 25] and
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(3) DIRECTING CLERK TO
19 PROVIDE PLAINTIFF A NEW IFP
PACKAGE FOR SECOND
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ATTEMPT TO SERVE DEFENDANT
21 MIGUEL BY U.S. MARSHAL
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24 Plaintiff Gerald J. Wilson (“Plaintiff” or “Wilson”), currently incarcerated at R.J.
25 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se,
26 has filed “Motion for Plaintiff’s Request for Preliminary Injunction Relief Due to
27 Continuous Interference of Plaintiff’s Access to the Court’s and Prevent Grievance
28 Threatened Injury that Would Impair Court’s Ability to Grant Plaintiff Effective Relief to
1 Pending Civil Action” (Doc. 19 (hereinafter, “Motion for Injunctive Relief”)). Plaintiff
2 has also filed a “Inquiry Concerning Motion for Entry of Default and Motion for Entry of
3 Default Judgment Pursuant to Fed. R. Civ. P. 55(a), 55(b)(1)” (hereinafter, “Motion for
4 Default”). (Doc. 25.) For the reasons set forth below, Plaintiff’s Motion for Injunctive
5 Relief and Motion for Default are DENIED.
6 I. BACKGROUND
7 Plaintiff brought this action pursuant to 42 U.S.C. § 1983. (See “Compl.,” Doc. 1.)
8 Plaintiff alleged nearly two dozen doctors, health care workers, and correctional officials
9 violated his First and Eighth Amendment rights while he was incarcerated at RJD, Kern
10 Valley State Prison (“KVSP”) in Delano, California, and California State Prison Los
11 Angeles County (“LAC”) in Lancaster, California, from June 2018 through September
12 2022. (Id. at 10–55.1) The Complaint seeks $5 million in general and punitive damages,
13 and injunctive relief enjoining defendants from refusing to enforce the Americans With
14 Disabilities Act (“ADA”). (Id. at 56–57.) The Court dismissed the action on February 14,
15 2023 because Plaintiff did not pay the civil filing fee or file a motion to proceed in forma
16 pauperis. (Doc. 4.)
17 On March 24, 2023, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”)
18 pursuant to 28 U.S.C. § 1915(a). (Doc. 5.) On June 5, 2023, the Court granted the IFP
19 motion and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1914A(b),
20 concluding Plaintiff had stated an Eighth Amendment claim against Defendant S. Miguel
21 (“Defendant Miguel”) but had failed to state a claim as to the remaining Defendants. (Doc.
22 7.) Plaintiff was given the option of filing an amended complaint that cured the deficiencies
23 outlined in the Court’s dismissal order or to notify the Court of his intent to proceed with
24 his Eighth Amendment claim against Defendant Miguel only. (Id. at 17–18.) The Court
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28 1 The Court cites the CM/ECF electronic pagination unless otherwise noted.
1 specifically warned Plaintiff that if he did not choose one of the two options, his case would
2 be dismissed. (Doc. 7 at 18.)
3 On August 25, 2023, the Court dismissed this action for failure to prosecute because
4 Plaintiff had not filed an amended complaint or indicated his intention to proceed only with
5 his Eighth Amendment claim against Defendant Miguel. (Doc. 8 at 3.) On September 6,
6 2023, Plaintiff filed a Motion for Reconsideration indicating he had not received the
7 Court’s June 5, 2023 Order and requesting the Court vacate the dismissal for failure to
8 prosecute. (Doc. 10.) The Court granted the Motion for Reconsideration and provided
9 Plaintiff additional time to either notify the Court of his intention to proceed with his Eighth
10 Amendment claim against Defendant Miguel or file an amended complaint that cured the
11 deficiencies of the Complaint. (Doc. 12 at 3.) Plaintiff advised the Court he wished to
12 proceed only with his Eighth Amendment claim against Defendant Miguel. (Doc. 15; see
13 also Doc. 20 (advising the Court of Plaintiff’s September 28, 2023 Notice to confirm
14 Court’s receipt).)
15 Consistent with Plaintiff’s choice to proceed only with his Eighth Amendment claim
16 against Defendant Miguel for slamming a yard door on Plaintiff’s leg and wheelchair, only,
17 on November 7, 2023, the Court dismissed all claims against all other Defendants. (Doc.
18 17 at 3.) The Court also directed the Clerk of the Court to issue an IFP Package—a
19 summons as to Plaintiff’s Complaint, a blank U.S. Marshal Form 285 (“Form USM-285”),
20 and certified copies of the Court’s Order and the Complaint—to Plaintiff for purposes of
21 service. (Id.)
22 The Order directed that Plaintiff was to complete the Form USM-285 as completely
23 and accurately as possible, including an address for service of Defendant Miguel, and to
24 return it to the U.S. Marshal according to the instructions the Clerk provided. (Id.) As
25 explained further below, the U.S. Marshal was not able to complete service of Defendant
26 Miguel based on the information provided by Plaintiff on the Form USM-285. (Doc. 22.)
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1 II. DISCUSSION
2 Plaintiff appears to seek a preliminary injunction pursuant to Federal Rule of Civil
3 Procedure 65 or in the alternative an order from this Court under the All Writs Act, 28
4 U.S.C. 1651(a). (Doc. 19 at 2, 5–8 (referencing standards for preliminary injunctions and
5 orders under the All Writs Act).)
6 A. Plaintiff’s Motion for Injunctive Relief
7 Plaintiff asserts that his legal mail, specifically a June 5, 2023 Order from this Court,
8 was taken by someone2 working at RJD. (Doc. 19 at 2 (“The Court mail[ed] Plaintiff a[n]
9 Order on June 5, 2023, which Plaintiff never received to this day.”).) Plaintiff explains
10 that a guard had him sign a log sheet for a piece of legal mail before handing the piece of
11 legal mail to Plaintiff. (Id. at 3–4.) Plaintiff signed the log sheet. (Id. at 4.) However,
12 when he received the piece of mail, the envelope was already open, and it contained legal
13 mail for a different inmate. (Id.) Plaintiff has attached a copy of the piece of mail and
14 envelope that he claims to have received. (Doc. 19-2 [Ex. A] at 1–6.3)
15 Plaintiff asserts that the guard that gave him the piece of legal mail “hurr[ied] out of
16 the building” and did not wait for Plaintiff to open the piece of mail in guard’s presence.
17 (Doc. 19 at 4.) Plaintiff yelled for the floor officer, Officer Cruz, and asked him to tell the
18 legal mail officer to come back because Plaintiff had received another inmate’s mail. (Id.)
19 When Officer Cruz told Plaintiff to give him the mail, Plaintiff “told him no [and to] just
20 call the legal mail officer back.” (Id. at 4.)
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24 2 Plaintiff references unidentified individuals working at RJD that he interacted with as
“co-state actors” throughout his Motion for Injunctive Relief, however, the Court refers to
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them as guards or staff members.
26 3 Exhibit A is a window-type envelope stamped received November 1, 2023. (Doc. 19-2
at 2–3.) The next page is a sheet with Plaintiff’s name and address. (Id. at 4.) The final
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two pages are an October 26, 2023 order a case before the Ninth Circuit Court of Appeals
28 brought by a different plaintiff. (Id. at 5–6.)
1 Plaintiff asserts that he is entitled to a preliminary injunction because further
2 interference by staff members “will impair the Court’s ability to grant Plaintiff effective
3 relief in Plaintiff’s pend[ing] civil action before this Court.” (Id. at 5.) Plaintiff alleges
4 that he “will suffer irreparable harm after the next retaliation by defendants co-state actors
5 because [if] there [is] another, the odds are not in Plaintiff’s favor.” (Id.) Plaintiff
6 emphasizes the importance of the mail coming from this Court and that he has no ability
7 to control or direct the staff at the prison to properly deliver his legal mail. (Id. at 6.) He
8 also argues his mail being taken and not returned is an issue for his trial preparation. (Id.
9 at 7.) Plaintiff explains that he will have to file “motion after motion to retain the items
10 needed to adequately litigate the civil action and this will disrupt the administration of
11 justice.” (Id.)
12 Plaintiff requests the Court order the following: (1) “reissue to Plaintiff whatever
13 legal mail item the Court mail[ed] to Plaintiff dated received by (RJD) on November 1,
14 2023;” (2) that the Court make a finding “that Plaintiff’s access to the Court is being
15 interfere[d] [with] by the defendant and co-state actors[,] and that defendant Miguel be
16 sanction[ed] by the Court in the amount of $10,000;” and (3) that all mail from this Court
17 “be delivered to Plaintiff by the United States Marshal … and all cost and such process be
18 funded by the defendant.” (Id. at 8.)
19 1. Preliminary Injunction
20 “A preliminary injunction is appropriate when it grants relief of the same nature as
21 that to be finally granted.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d
22 631, 636 (9th Cir. 2015) (citing De Beers Consol. Mines v. United States, 325 U.S. 212,
23 220 (1945)). “[T]here must be a relationship between the injury claimed in the motion for
24 injunctive relief and the conduct asserted in the underlying complaint.” Id. (formally
25 adopting the Eighth Circuit’s rule from Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
26 1994)). As the Ninth Circuit explained in adopting this test from Devose v. Harrington, it
27 “requires a sufficient nexus between the claims raised in a motion for injunctive relief and
28 the claims set forth in the underlying complaint itself.” Id.
1 The relief Plaintiff seeks in a preliminary injunction—reissuance of a Court order,
2 sanctioning Defendant Miguel for the conduct of “co-state actors,” and delivery of all Court
3 mail by the U.S. Marshal (Doc. 19 at 8)—is not “of the same nature as that to be finally
4 granted” based on the Complaint. Pac. Radiation Oncology, LLC, 810 F.3d at 636 (citation
5 omitted). In his prayer for relief in the Complaint, Plaintiff seeks financial compensation
6 for harms suffered and the prison’s compliance with the ADA. This relief is not of the
7 same nature as the relief Plaintiff seeks in his Motion for Injunctive Relief.
8 Additionally, there is no nexus between Plaintiff’s Eighth Amendment claim in the
9 Complaint against Defendant Miguel and the claim raised in the Motion for Injunctive
10 Relief regarding legal mail. Plaintiff’s Complaint is proceeding only on an Eighth
11 Amendment claim against Defendant Miguel for slamming Plaintiff’s leg and wheelchair
12 in a yard door. (Doc. 17 at 3.) There is no “relationship between the injury claimed in the
13 motion,”—mishandling of legal mail—and “the conduct asserted in the underlying
14 complaint—Defendant Miguel closing a door on Plaintiff and his wheelchair.” Pac.
15 Radiation Oncology, LLC, 810 F.3d at 636. Plaintiff’s description of the staff members
16 that allegedly took his legal mail as “co-state actors,” presumably acting in concert with
17 Defendant Miguel, does not connect that conduct to Plaintiff’s claim in the Complaint.
18 Devose is instructive on this point. See Devose, 42 F.3d at 471. The plaintiff in Devose,
19 like Plaintiff here, “brought a 42 U.S.C. § 1983 action against prison officials for violating
20 his Eighth Amendment rights.” Pac. Radiation Oncology, LLC, 810 F.3d 636 (discussing
21 Devose, 42 F.3d at 471). The prisoner plaintiff then “sought injunctive relief claiming
22 prison official retaliated against him for bringing his lawsuit.” Id. (citing Devose, 42 F.3d
23 at 471). The court found “the prisoner’s motion for injunctive relief based on retaliation
24 by prison officials was entirely different and separate from the underlying conduct
25 challenged in the § 1983 action” and affirmed the denial of injunctive relief. Id. (citing
26 Devose, 42 F.3d at 471). Like the retaliation claim in Devose, Plaintiff’s legal mail claim
27 here is “entirely different and separate” from the conduct alleged in his underlying Eighth
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1 Amendment claim against Defendant Miguel—slamming a yard door on Plaintiff and his
2 wheelchair. Id. (citing Devose, 42 F.3d at 471).
3 Here, because Plaintiff “seeks injunctive relief based on claims not pled in the
4 complaint, the court does not have the authority to issue an injunction.” Id. at 633 (“A
5 court’s equitable power lies only over the merits of the case or controversy before it. When
6 a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does
7 not have the authority to issue an injunction.”). Plaintiff’s request for a preliminary
8 injunction is DENIED.
9 2. All Writs Act
10 As an alternative to a preliminary injunction, Plaintiff seeks the same injunctive
11 relief under the All Writs Act, 28 U.S.C. § 1651(a). (Doc. 19 at 6–7.)
12 The All Writs Act allows federal courts to “issue all writs necessary or appropriate
13 in aid of their respective jurisdiction and agreeable to the usages and principles of law.”
14 28 U.S.C. § 1651(a). It is “designed to aid the courts in the exercise of jurisdiction.” Plum
15 Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). “[I]njunctive relief
16 under the All Writs Act is to be used sparingly and only in the most critical and exigent
17 circumstances” and only when “the legal rights at issue are indisputably clear.” Brown v.
18 Gilmore, 533 U.S. 1301, 1303 (2001) (citations and quotations omitted).
19 Plaintiff does not specify how the injunctive relief requested would aid the Court’s
20 exercise of its jurisdiction. He only argues his ability to comply with pre-trial scheduling
21 deadlines and to file timely responses to anticipated motions would be improved if the
22 Court issued the injunctive relief requested. (Doc. 19 at 6–7.) This is not sufficient to
23 warrant the relief requested under the All Writs Act.
24 Plaintiff’s allegations regarding his legal mail do not justify imposition of sanctions
25 against Defendant Miguel or use of the U.S. Marshal for all of Plaintiff’s legal mail from
26 this Court. Additionally, even if there was any factual connection between the staff
27 members that allegedly mishandled Plaintiff’s legal mail from the Court and Defendant
28 Miguel, it would not justify the imposition of $10,000 in monetary sanctions. Similarly,
1 the Court is not persuaded that minimal allegations of mishandling or Plaintiff’s mail from
2 this Court justify the use of the U.S. Marshal to provide Plaintiff with all mailings from
3 this Court. Finally, Plaintiff’s request for the Court to “reissue to Plaintiff whatever legal
4 mail item the Court mail[ed] to Plaintiff dated received by (RJD) on November 1, 2023”
5 does not require the use of the All Writs Act.4 Accordingly, Plaintiff’s request for
6 injunctive relief under the All Writs Act is DENIED.
7 B. Plaintiff’s Motion for Default
8 Plaintiff has filed a Motion for Default. (Doc. 25). Additionally, Plaintiff previously
9 submitted two requests to the Clerk for entry of default against Defendant Miguel. (Doc.
10 23–24.) Default was not entered by the Clerk as to either because Defendant Miguel has
11 not been served. The Form USM-285 filed in the case docket by the U.S. Marshal indicated
12 that service was attempted by certified mail to the Litigation Coordinator at RJD, but the
13 Defendant was not served. (Id. at 1.) The Form USM-285 indicates “service returned /
14 inability to identify staff member by litigation office of [RJD] after thorough search of
15 records [and] files.” (Id.) The filing also includes the letter the U.S. Marshal’s Service
16 received from the Litigation Coordinator at RJD indicating they are “refusing service of
17 the summons, waiver, and complaint due to the inability to identify any staff member with
18 this name after a thorough search of our records and files.” (Id. at 2.)
19 Before the Clerk or the Court can enter default judgment under Federal Rule of Civil
20 Procedure 55(b), the Clerk must enter a defendant’s default under Rule 55(a). However,
21 here, Plaintiff has not met the requirements for the Clerk to enter default under Rule 55(a).
22 Under Rule 55(a), [w]hen a party against whom a judgment for affirmative relief is sought
23 has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
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26 4 As explained below, the Court will order the Clerk to mail Plaintiff a copy of the docket
sheet for this case and copies of Docket Nos. 4, 7–8, 12, 17, and 22. These are all the
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orders issued by the Court in this case (Docs. 4, 7–8, 12, 17) and the U.S. Marshal’s return
28 of Plaintiff’s Form USM-285 showing service was not completed (Doc. 22).
1 the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a) (emphasis added).
2 Defendant Miguel has not “failed to plead or otherwise defend” because he has not been
3 served. Until he is properly served, Defendant Miguel has no obligation to respond to the
4 Complaint. Additionally, because there is no record of service of Defendant Miguel, his
5 failure to plead cannot be shown by affidavit. Put another way, Plaintiff cannot meet the
6 requirement to “show[] by affidavit or otherwise” that Defendant Miguel has “failed to
7 plead or defend” until there is a record indicating Plaintiff’s Complaint and the summons
8 have been served.
9 Accordingly, Plaintiff’s Motion for Default (Doc. 25) is DENIED.
10 C. Provision of Court Orders and Copy of the Docket Sheet
11 Plaintiff requests the Court provide him with the “legal mail item the Court mail[ed]
12 to Plaintiff dated received by (RJD) on November 1, 2023.” While Plaintiff indicates he
13 did not receive the June 5, 2023 Order, he does not indicate which other Court orders he
14 has received. Accordingly, the Court ORDERS the Clerk to mail Plaintiff a copy of the
15 Docket Sheet for this case and copies of Docket Nos. 4, 7–8, 12, 17, and 22. These are all
16 the orders issued by this Court and the Form USM-285 showing service was not completed
17 by the U.S. Marshal.
18 D. Service of the Complaint
19 The letter attached to the U.S. Marshal’s return of Form USM-285 indicates refusal
20 of service because they are unable “to identify any staff member with this name after a
21 thorough search of our records and files.” (Doc. 22. at 2.) The Court directs Plaintiff to
22 provide any additional information he can by attachment to his new Form USM-285 to
23 assist the U.S. Marshal, with assistance from the Litigation Coordinator at RJD, in locating
24 and serving Defendant Miguel.
25 III. CONCLUSION
26 Plaintiff’s Motion for Injunctive Relief (Doc. 19) and Motion for Default (Doc. 25)
27 are DENIED. The Court ORDERS the Clerk to mail Plaintiff a copy of the Docket Sheet
28 for this case and copies of Docket Nos. 4, 7–8, 12, 17, and 22. The Court also:
1 1. DIRECTS the Clerk to send Plaintiff a new blank Form USM-285. In
2 addition, the Clerk will provide Plaintiff with a certified copy of this Order, an additional
3 certified copy of his Complaint, and an additional copy of the summons (Doc. 18) so that
4 he may serve Defendant Miguel. Upon receipt of this “IFP Package,” Plaintiff must
5 complete the Form USM-285 as completely and accurately as possible, include an address
6 where Defendant Miguel may be found and/or subject to service pursuant to S.D. Cal.
7 CivLR 4.1c., and return it to the U.S. Marshal according to the instructions the Clerk
8 provides. As noted above, Plaintiff should provide the U.S. Marshal with any additional
9 information that may assist the U.S. Marshal or the Litigation Coordinator in locating
10 Defendant Miguel for completion of service as ordered by this Court.
11 2. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint (Doc. 1)
12 and summons (Doc. 18) upon Defendant Miguel at the address provided by Plaintiff on the
13 Form USM-285 provided by Plaintiff, and to file an executed waiver of personal service
14 upon Defendant Miguel with the Clerk of Court as soon as possible after its return. Should
15 Defendant Miguel fail to return the U.S. Marshal’s request for waiver of personal service
16 within 90 days, the U.S. Marshal must instead file the completed Form USM-285 Process
17 Receipt and Return with the Clerk of Court, include the date of all efforts made to complete
18 service and why service remains unexecuted. All costs of service will be advanced by the
19 United States; however, if Defendant Miguel is located within the United States, and fails
20 without good cause to sign and return the waiver requested by the U.S. Marshal on
21 Plaintiff’s behalf, the Court will impose upon Defendant Miguel any expenses later
22 incurred in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
23 3. ORDERS Defendant Miguel, once served, to reply to Plaintiff’s Complaint
24 within the time provided by the applicable provisions of Federal Rule of Civil Procedure
25 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to
26 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or
27 other correctional facility under section 1983,” once the Court has conducted its sua sponte
28 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a
| |}preliminary determination based on the face on the pleading alone that Plaintiff has a
2 || “reasonable opportunity to prevail on the merits,” defendant is required to respond).
3 4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
4 ||serve upon Defendant Miguel, or if appearance has been entered by counsel, upon
5 || Defendant Miguel’s counsel, a copy of every further pleading, motion, or other document
6 ||submitted for the Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b).
7 || Plaintiff must include with every original document he seeks to file with the Clerk of the
8 || Court, a certificate stating the manner in which a true and correct copy of that document
9 || was served on Defendant Miguel or his counsel, and the date of that service. See S.D. Cal.
10 |}CivLR 5.2. Any document received by the Court which has not been properly filed with
11 Clerk or which fails to include a certificate of service upon Defendant Miguel or his
12 || counsel, may be disregarded.
13 IT IS SO ORDERED.
14 || Dated: September 20, 2024 Fe Le ? L □
IS HON. RUTH BERMUDEZ MONTENEGRO
16 UNITED STATES DISTRICT JUDGE
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VAD. ANVDEN DDAT TANT