Free Response in Opposition to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Misty D. Guille Assistant Attorney General State Bar No. 020830 1275 West Washington Phoenix, AZ 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendant IN THE UNITED STATES DISTRIT COURT FOR THE DISTRICT OF ARIZONA Allace Cornellier, Plaintiff, v. Sandra Walker, et al., Defendants Defendant Ruboyianes,1 through undersigned counsel, responds to Plaintiff's Motion for Preliminary Injunction [Dkt. 36] and requests the Court to deny it for the reasons set forth in the attached Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Cornellier is an inmate in the custody of the Arizona Department of Corrections ("ADC"). He filed the First Amended Complaint [Dkt. 16] on September 13, 2004. The Court issued its Screening Order [Dkt. 17] four months later, dismissing all counts and defendants except for Count V as to Defendants Ulibarri and Ruboyianes. In the remaining Count, Cornellier alleges that Ulibarri and Ruboyianes violated his
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No. CV04-0724-PHX-PGR (JJM) RESPONSE IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

To Defendant's knowledge, B. Ulibarri has not yet been served.
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constitutional right of access to the courts, resulting in the dismissal of his state habeas corpus petition. He alleges that Ulibarri refused his request for assistance (forcing him to use only available materials), copied only select materials that he had requested, and delayed returning the copies. (Dkt. 16 at 8-8A.) He alleges that Ruboyianes allowed him only two legal resources at a time, allowed him to pick up copy work only on select days (regardless of court deadlines), refused to provide him requested copies of ADC policies and grievances, and delayed returning the copies. (Id.) Defendant Ruboyianes filed a Motion to Dismiss [Dkt. 25] based on Cornellier's failure to exhaust administrative remedies, Cornellier responded [Dkt. 28], and Defendant replied [Dkt. 29]. In September 2005, Cornellier filed a motion for a preliminary injunction and temporary restraining order [Dkt. 31] and Defendant responded [Dkt. 33]. Cornellier then filed the present motion for a preliminary injunction [Dkt. 36]. The day after Cornellier filed this motion, the Magistrate Judge issued her Report and Recommendations [Dkt. 34] to grant Defendant's Motion to Dismiss [Dkt. 25] and to deny all other pending motions as moot. The Magistrate Judge also issued an Order [Dkt. 35] granting Cornellier's Motion for an Order [Dkt. 23], and denying his following motions: Motion for a Court Order [Dkt. 19], Motion to Deny Objection to Defendants Using Case Law Citations In/On Any Documents Submitted [Dkt. 21], Motion for Ruling [Dkt. 26], and Motion for Extension of Time [Dkt. 27]. The District Court has not yet issued a decision based on the Magistrate Judge's Report and Recommendations [Dkt. 34]. Neither the Magistrate Judge nor the District Court Judge has addressed Cornellier's motions seeking a preliminary injunction. For the reasons set forth below, Cornellier is not entitled to the relief he currently seeks. ... ...

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II.

LEGAL ARGUMENT A. Legal Standard for Granting Injunctive Relief

The purpose of a preliminary injunction is to preserve the status quo among the parties pending the outcome of the action. Regents of University of California v. American Broadcasting Companies, Inc., 747 F.2d. 511, 514 (9th Cir. 1984). It is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Cornellier is not entitled to a preliminary injunction unless he shows either: "`(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the movant's] favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.'" MAI Sys. Corp. v. Peak Computers, Inc., 991 F.2d 511, 516 (9th Cir. 1993) (quoting Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990)). "Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury." Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). "Speculative injury does not constitute irreparable injury." Goldie's Bookstore, Inc., v. Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984). Cornellier's burden is high in light of the deference provided to prison officials in their operation of prisons. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979) (courts should accord wide-ranging deference to prison officials regarding their operation of prisons); Lewis v. Casey, 518 U.S. 343, 361-62 (1996) (finding that the District Court "failed to accord adequate deference to the judgment of the prison authorities" when it granted injunctive relief). Further limitations on injunctive relief are imposed by the Prisoner Litigation Reform Act:

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Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1). B. Cornellier is Not Entitled to Injunctive Relief Against Defendants or Non-Parties.

An injunction "is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them." Fed. R. Civ. P. 65(d); see generally Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 13-14 (1945) (discussing the common law roots of the rule). Cornellier appears to request injunctive relief against non-parties. He alleges the following: · "[W]hile in that `isolation' cell, [plaintiff] did not receive any shower, recreation, change of clothes, or any of his legal material, in which event, a state court action (No. CV2005-000730; Maricopa County) was dismissed for failture to file a response, due to the action of A.D.C. officials." (Dkt. 36 at 2.) (Emphasis added.) · "[T]he staff at (CB-6) `confiscated' legal material, and personal property." (Dkt. 36 at 2-3.) (Emphasis added.) · "Staff refused to accept kits, or inmate letters, or issue these to inmates. . . . Further, staff would `lose' those `single page' kites, the dismissal of legal cases in courts, because plaintiff is not able to meet deadlines, or do proper research is

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not permissable [sic], and there is no adequate remedy at law." (Dkt. 36 at 3.) (Emphasis added.) · "The continual loss of personal, or legal property and the needless delays in inmates receiving said legal materials, the constant negligence of staff of their care and security concernce [sic] of it's inmates, to cause `physical harm or injury' to others while staff do little, or nothing, until other staff arrive to help." (Dkt. 36 at 3.) (Emphasis added.) Because he seeks relief against non-parties and he fails to allege that Ruboyianes acted in concert with "A.D.C. officials" and/or "staff,"2 the Court should deny his motion for preliminary injunctive relief. C. Cornellier is Not Entitled to Injunctive Relief Regarding Matters Not Alleged in His Complaint.

This Court does not have jurisdiction over Cornellier's motion because it relates to matters not alleged in the Complaint. See Stewart v. United States I.N.S., 762 F.2d 193 14 (2nd Cir. 1985) (holding that the district court lacked jurisdiction to issue preliminary 15 injunctive relief where plaintiff's motion presented issues "entirely different from those" 16 he alleged in his original complaint). Cornellier seeks injunctive relief regarding the 17 following: housing and property issues that allegedly occurred after the Complaint was 18 19 20 21 22 23 24 25 26 He does mention "Defendants" a couple of times, but he fails to connect any particular defendant with any particular action: · "Plaintiff must continue to be in debt due to legal filing fees, and by Defendants continuing there [sic] actions the cases are dismissed with no other remedy." (Dkt. 36 at 3.) (Emphasis added.) · "For the foregoing reasons, it is requested this court grant, and issue, an injunction against Defendants to prevent any further harm, injury, or irreparable damage, to plaintiff, and his personal, and legal material." (Dkt. 36 at 8.) (Emphasis added.) The imposition of the "extraordinary and drastic remedy" provided by a preliminary injunction is not justified by Cornellier's general (and somewhat cryptic) allegations against the "Defendants." See Mazurek, 520 U.S. at 972. Additionally, the Court here could not tailor an injunction specifically enough to comply with Fed. R. Civ. P. 65(d).
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filed (Dkt. 36 at 2); the loss of privileges (related to his housing status) (id. at 3-4); and a physical assault by other inmates (id. at 4-5). But these allegations do not reference Defendant Ruboyianes. (See Dkt. 36 at 2.) Because Cornellier's underlying action does not relate to the issues he now raises in this motion, the Court lacks jurisdiction to issue preliminary injunctive relief.3 D. Cornellier Fails to Establish Probable Success on the Merits or the Possibility of Irreparable Injury.

Even if the Court deems Cornellier's motion appropriate as against Ruboyianes, it must deny the motion because he fails to demonstrate a probability of success on the 9 merits. 10 To succeed on a claim alleging denial of access to the courts, a prisoner must show 11 that the defendant prevented or frustrated him from pursuing a claim attacking his sentence 12 or challenging the conditions of his confinement. Lewis v. Casey, 518 U.S. 343, 354-55 13 (1996). Cornellier provides only conclusory allegations that the "Defendants" actions 14 somehow result in the dismissal of cases. (See Dkt. 36 at 3, 4.) However, he fails to 15 provide facts or allegations connecting Ruboyianes to the dismissal of any particular case. 16 Cornellier also fails to demonstrate the possibility of irreparable injury. He merely 17 speculates that he may suffer harm without the relief of an injunction: "Plaintiff has 18 suffered pain and suffering from the assault, and suffered the loss of his level 3 19 `privileges,' and loss of personal property. If the relief of an injunction is denied, the 20 plaintiff may end up suffering more harm, and more loss." (Dkt. 36 at 5.) However, 21 22 23 24 25 26 Even if Cornellier had addressed these issues in his Complaint, this Court may exercise its discretion and give Defendants time to rectify the situation before issuing an injunction. Farmer v. Brennan, 511 U.S. 825, 847 (1994). Before seeking injunctive relief, a prisoner should be required to utilize prison grievance procedures. Id. Defendant's Motion to Dismiss [Dkt. 25] demonstrates that Cornellier failed to exhaust his administrative remedies regarding any grievances against Defendant Ruboyianes for denial of access to courts.
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"[s]peculative injury does not constitute irreparable injury." Goldie's Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984). Accordingly, the Court should deny Cornellier's motion for a preliminary injunction. E. Cornellier Has Not Shown The Existence of Serious Questions Going to the Merits and the Balance of Hardships Tipping in His Favor.

Cornellier's general, vague, and often cryptic allegations fail to show the existence of serious questions going to the merits. While he does state that it is in the public interest 8 for prison officials to act lawfully, this does not demonstrate that public policy favors the 9 injunctive relief he seeks here. 10 Additionally, he fails to show what hardship would ensue if this Court were to deny 11 his requested relief. He claims that he "must continue to be in debt due to legal filing fees" 12 (Dkt. 36 at 3), but he fails to explain how these debts would be avoided through the 13 14 sufficient to warrant injunctive relief, then ADC employees would be inundated with 15 injunctions from inmates, and ADC's regular operations would effectively halt. 16 F. 17 18 19 20 21 22 23 24 25 26 His claims that he has suffered physical pain from an assault, loss of his level 3 privileges, and loss of personal property (Dkt. 36 at 5) are unrelated to the underlying action alleging denial of access to the courts.
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issuance of a preliminary injunction.4 If allegations as general as Cornellier's were

The Court Should Require Cornellier to Post Security.

The Federal Rules of Civil Procedure provide as follows: (e) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. Rule 65(c), Fed. R. Civ. P.

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Accordingly, if this Court finds that Cornellier has met his burden and grants him preliminary injunctive relief, Defendant requests that the Court require him to post a security bond in an amount of $500.00 before the injunction may be issued. III. CONCLUSION Because Cornellier fails to establish any of the criteria for obtaining a preliminary injunction, the Court should deny his request for preliminary injunctive relief. RESPECTFULLY SUBMITTED this 11th day of October, 2005. TERRY GODDARD Attorney General /s Misty D. Guille MISTY D. GUILLE Assistant Attorney General Attorneys for Defendant COPY of the foregoing and Notice of Electronic Filing mailed the 12th day of October, 2005, to: Allace Cornellier, ADC # 040553 ASPC-Lewis-Morey Unit P.O. Box 3300 Buckeye, AZ 85326-3300 Plaintiff Pro Per /s Misty D. Guille
IDS05-0081/RM#G04-21814

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