I. BACKGROUND

22 A. Plaintiff’s Claims 23 Plaintiff filed the complaint commencing this action on April 9, 2019. (ECF No. 1.) The 24 complaint alleged, in relevant part, that Plaintiff reported having suicidal thoughts while housed 25 in the Short Term Restricted Housing unit (“STRH”) at California State Prison—Corcoran 26 (“CSP—Corcoran”) because the windowless cells in STRH lack natural light, but Defendant Kyle 27 nonetheless issued a chrono in September of 2016 indicating that he could be placed in STRH. 28 (Id. at 11.) Plaintiff also alleges that Defendants were involved in a decision to place him in the 1 Indecent Exposure Pilot Program (“IEX Program”), which mixed protective and non-protective

2 custody inmates, despite knowing that if Plaintiff “programmed peacefully with the protective

3 custody inmates in IEX that he would be subject to attack by other non-protective custody

4 inmates when released back to general population.” (Id. at 19.) Plaintiff alleges that he had physical altercations with protective custody inmates while in the IEX Program. (Id. at 19-20.) 5 On May 28, 2019, the Court entered an order screening Plaintiff’s complaint. (ECF No. 6 10.) The Court found that Plaintiff’s complaint stated cognizable claims for deliberate 7 indifference to serious risk of harm in violation of the Eighth Amendment against Defendants 8 Kyle, Grossman, Thompson, Depovic, Moreno, Overly, Wright, Gamez, and Castillo 9 (“Defendants”) and a cognizable claim for retaliation in violation of the First Amendment against 10 Defendants Kyle, Moreno, Wright, Overly Gamez, and Castillo. (Id. at 15.) The Court entered 11 findings and recommendations consistent with the screening order and the findings and 12 recommendations were adopted in full. (ECF Nos. 17, 31.)

13 On May 10, 2021, Defendants filed a motion for summary judgment. (ECF No. 99.) On

14 March 31, 2022, the Court entered findings and recommendations recommending that

15 Defendants’ motion for summary judgment be granted. (ECF No. 134.) Those findings and

16 recommendations are currently pending before District Judge Dale A. Drozd.

17 B. Plaintiff’s Prior Motion 18 On October 13, 2020, Plaintiff filed a motion for preliminary injunction. (ECF No. 62.) 19 This motion requested that the Court issue an order requiring CSP—Corcoran to keep Plaintiff in 20 the Long Term Restricted Housing unit (“LTRH”) until a trial in this case. (Id.) On Mach 4, 2021, 21 the Court entered findings and recommendations recommending that Plaintiff’s motion be denied. 22 (ECF No. 90.) The Court found that Plaintiff failed to establish that irreparable harm was likely, 23 the motion went beyond the allegations of the complaint, Plaintiff had not shown that he was likely to succeed on the merits or the balance of equities favored injunctive relief, and the motion 24 sought relief against non-defendants. (Id.) On May 24, 2021, District Judge Drozd entered an 25 order adopting the findings and recommendations in full and denying the motion. (ECF No. 100.) 26 C. Plaintiff’s Pending Motion 27 Plaintiff filed the underlying motion for injunctive relief on February 8, 2022. (ECF No. 28 1 134.) Plaintiff explains that, on November 15, 2019, he was convicted of five counts of indecent

2 exposure for purportedly masturbating in his prison cell on occasions when female staff saw him.

3 (Id. at 2-3.) On January 27, 2022, the Inmate Classification Committee (“ICC”) at CSP-Corcoran,

4 which included Defendant Kyle, convened and suspended Plaintiff’s determinate segregation term over Plaintiff’s objection and in violation of prison procedures, which require a finding that 5 Plaintiff no longer poses a threat to the safety of any person or the security of the institution. (Id. 6 at 3.) The ICC knew that the accusations of indecent exposure made “segments of general 7 population antagonistic towards” Plaintiff. (Id. at 3-4) Plaintiff “do[es] not intend to employ the 8 fool hardy notion of appealing to staff to protect me. Rather, I will employ violence.” (Id. at 4.) 9 Plaintiff also has “yellow placard security precautions” affixed to his cell, which he explains were 10 implemented to avoid accusations that CDCR is creating a hostile work environment through 11 indifference to inmate masturbation. (Id. at 4-5.) Additionally, Plaintiff has a history of assaulting 12 protective custody inmates and therefore the only viable option is administrative SHU. (Id. at 5.)

13 Nevertheless, the ICC referred Plaintiff for transfer to the general population at California State

14 Prison—Sacramento or North Kern State Prison. (Id.) The ICC knows of Plaintiff’s risk to

15 commit suicide in STRH and threatened to send Plaintiff there if staff issues him a rule violation

16 report carrying a determinate segregation term and jeopardizing the ICC’s ability to transfer

17 Plaintiff to general population. (Id. at 6-7.) 18 Defendants did not file an opposition or otherwise respond to the motion. The matter was 19 submitted on the record without oral argument pursuant to Local Rule 230(l). 20 II. LEGAL STANDARDS 21 A federal district court may issue emergency injunctive relief only if it has personal 22 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 23 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party officially, and is required to take action in that capacity, only upon service of summons or other 24 authority-asserting measure stating the time within which the party served must appear to 25 defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., 26 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 27 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive 28 1 relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under

2 Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,”

3 their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active

4 concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). “When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an 5 injunction.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 6 2015). 7 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the 8 Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is 9 narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, 10 and is the least intrusive means necessary to correct the violation of the Federal Right.” 11 On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is 12 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

13 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

14 public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural

15 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that

16 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance

17 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 18 III. ANALYSIS 19 The Court will recommend that the motion be denied. 20 Plaintiff has not established that he is likely to succeed on the merits. Notably, the Court 21 has issued findings and recommendations recommending that summary judgment be granted in 22 favor of Defendants on the merits of Plaintiff’s claims. (See ECF No. 134.) Plaintiff concludes in 23 the motion that he is likely to succeed on the merits but only generally describes the allegations of the complaint. He has not submitted any declarations, witness statements, discovery, or other 24 evidence in support of the motion suggesting Defendants were deliberately indifferent to a serious 25 risk of harm in violation of his Eighth Amendment rights or retaliated against him in violation of 26 his First Amendment rights. 27 28 1 Additionally, Plaintiff’s allegation that he faces irreparable harm is speculative. Plaintiff

2 must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary

3 injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); see

4 also Caribbean Marine Srvs. Co. v. Baldridge, 844 F.2d 668, 675 (9th Cir. 1988) (where “multiple contingencies” must occur before the alleged injury occurred, the threat was too 5 speculative to constitute “an irreparable harm justifying injunctive relief.”). 6 Plaintiff also has not identified any immediate threat to his safety and has not submitted 7 evidence suggesting that there are inadequate safeguards in place to protect Plaintiff if he is 8 moved to general population. Instead, Plaintiff indicates that he refuses to utilize those protections 9 and states he will instead commit violence. (ECF No. 134.) See Perez v. Diaz, 2019 WL 3229622, 10 at *3 (E.D. Cal. July 18, 2019), report and recommendation adopted, 2019 WL 3986657 (E.D. 11 Cal. Aug. 22, 2019) (“Generalized allegations of past incidents of violence fail to show that 12 plaintiff . . . faces imminent harm.”).

13 Plaintiff’s motion also goes beyond the allegations of the complaint. This case is

14 proceeding on 1) Plaintiff’s claims for deliberate indifference to serious risk of harm in violation

15 of the Eighth Amendment against Defendants Kyle, Grossman, Thompson, Depovic, Moreno,

16 Overly, Wright, Gamez, and Castillo; and 2) Plaintiff’s claim for retaliation in violation of the

17 First Amendment against Defendants Kyle, Moreno, Wright, Overly Gamez, and Castillo. (See 18 ECF Nos. 1, 10, 17, 31.) Plaintiff’s deliberate indifference claims relate to his allegations that 19 Defendant Kyle issued a chrono in September of 2016 indicating that he could be placed in STRH 20 even though Plaintiff had reported becoming suicidal when housed in STRH because the cells 21 lack natural light, as well as his allegations that he got in to physical altercations with protective 22 custody inmates while in the IEX Program. (See ECF No. 1 at 11, 19-20.) 23 Here, Plaintiff requests that he not be transferred general population, but this does not indicate that Defendants, or even anyone at CDCR, are failing to follow protocols regarding 24 suicide prevention or enemy classification. Moreover, Plaintiff’s complaint does not allege that he 25 was attacked while in general population, and instead alleges that he got into physical altercations 26 with protective custody inmates in the IEX Program in order to protect himself from potential 27 attack by non-protective custody inmates in general population. Plaintiff also does not allege that 28 1 general population yards suffer from the same issues regarding lack of adequate windows as

2 STRH. To the contrary, general population yards generally enjoy more access to activities,

3 including outdoor activities. Accordingly, Plaintiff is not entitled to injunctive relief in this case

4 based on the allegations in his motion. Pac. Radiation Oncology, 810 F.3d at 633 (“When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have 5 the authority to issue an injunction.”). 6 Plaintiff also fails to show the balance of equities supports injunctive relief. “Prison 7 administration is a difficult and onerous task and courts have traditionally accorded a large degree 8 of deference in cases involving the administration of state penal institutions.” Jimenez v. Diaz, 9 2019 WL 5541372, at *4 (E.D. Cal. Oct. 28, 2019), report and recommendation adopted, 2020 10 WL 1911570 (E.D. Cal. Apr. 20, 2020) (citation omitted); Turner v. Safley, 482 U.S. 78, 85 11 (1987) (noting that the government is afforded widest latitude in cases involving the 12 administration of state prisons). Plaintiff has not shown that the equities favor this Court

13 interfering with a prison classification decision.

14 In light of the foregoing, the Court will recommend that the motion be denied.

15 IV. CONCLUSION AND RECOMMENDATIONS

16 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a

17 preliminary injunction (ECF No. 134) be DENIED. 18 These findings and recommendations are submitted to the United States district judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 20 (14) days after being served with these findings and recommendations, any party may file written 21 objections with the court. Such a document should be captioned “Objections to Magistrate Judge's 22 Findings and Recommendations.” Any reply to the objections shall be served and filed within 23 seven days after service of the objections. \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 1 The parties are advised that failure to file objections within the specified time may result 2 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ; IT IS SO ORDERED.

Dated: _ June 13, 2022 [Jee ey □□ 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28