Nance v. Miser et al

Filing 78

ORDER: The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Prospective Relief and Temporary Restraining Order 73 and the Motion is denied. Signed by Senior Judge Robert C Broomfield on 12/12/2013.(ALS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Plaintiff, 10 ORDER v. 11 12 No. CV-12-0734-PHX-RCB (DKD) Keith P. Nance, Allen Miser, et al. Defendants. 13 14 Plaintiff Keith P. Nance an inmate confined by the Arizona Department of 15 Corrections (ADC), filed this pro se civil rights action regarding denial of a Halal diet 16 and shaving waiver in violation of his religious exercise rights. (Doc. 9, First Amend. 17 Compl. (FAC).) Defendants moved for summary judgment, which the Court denied. 18 (Docs. 54, 69.) 19 Plaintiff now files a Motion for Prospective Relief and Temporary Restraining 20 Order regarding alleged retaliation for filing this lawsuit, which Defendants oppose. 21 (Docs. 73, 77.) The Court will deny the motion. 22 I. Motion 23 A. 24 A preliminary injunction is an extraordinary and drastic remedy and “one that 25 should not be granted unless the movant, by a clear showing, carries the burden of 26 persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A 27 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 28 (2d ed. 1995)). An injunction may be granted only where the movant shows that “he is Legal Standard 1 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 2 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 3 in the public interest.@ Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); 4 Am. Trucking Ass=n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 5 The movant has the burden of proof on each element of the test. Environmental Council 6 of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). A Request for a 7 TRO is governed by the same general standards that govern the issuance of a preliminary 8 injunction. See New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1347 n. 2 9 (1977); Los Angeles Unified Sch. Dist. v. U.S. Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 10 1982). 11 A preliminary injunction is appropriate under the sliding-scale test when a plaintiff 12 demonstrates that “serious questions going to the merits were raised and the balance of 13 hardships tips sharply in [plaintiff=s] favor.” Alliance for the Wild Rockies v. Cottrell, 14 632 F. 3d 1127, 1134-35 (9th Cir. 2011), citing Lands Council v. McNair, 537 F.3d 981, 15 987 (9th Cir. 2008) (en banc). 16 preliminary injunction test be balanced, so that a stronger showing of one element may 17 offset a weaker showing of another. “‘[S]erious questions going to the merits’ and a 18 balance of hardships that tips sharply towards the plaintiff can support issuance of a 19 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of 20 irreparable injury and that the injunction is in the public interest.” Id. at 1135. This approach requires that the elements of the 21 The Prison Litigation Reform Act (PLRA) also imposes requirements regarding 22 preliminary injunctive relief against prison officials. “Preliminary injunctive relief must 23 be narrowly drawn, extend no further than necessary to correct the harm the court finds 24 requires preliminary relief, and be the least intrusive means necessary to correct that 25 harm.” 18 U.S.C. ' 3626(a)(2). Thus, § 3626(a)(2) limits the court’s power to grant 26 preliminary injunctive relief to inmates; “no longer may courts grant or approve relief 27 that binds prison administrators to do more than the constitutional minimum.” Gilmore v. 28 People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000). -2- 1 In addition, a party seeking preliminary injunctive relief “must necessarily 2 establish a relationship between the injury claimed in the party’s motion and the conduct 3 asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) 4 (Eighth Amendment claim cannot provide basis for preliminary injunction against alleged 5 acts in retaliation for filing claim); see also Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th 6 Cir. 1997). 7 B. Discussion 8 In his Motion, Plaintiff asserts that he was informed that as of October 30, 2013, 9 he was terminated from his job based on an allegation that glue was found in his living 10 quarters during a routine shakedown in his unit. (Doc. 73 at 2-3.) He asserts that he has 11 not been given charges or a hearing. (Id. at 3.) He claims that ADC officials took 12 adverse action against him to deter him from continuing the present litigation. (Id.) He 13 also claims that because he will lose income due to the loss of his job, he will be harmed 14 because he requires funds to pursue this litigation. (Id. at 7.) Plaintiff asks the Court to 15 enjoin Defendants from participating in unwarranted harassment and other illegal actions. 16 (Id. at 1.) 17 The Court will deny Plaintiff’s request for preliminary relief. Obviously, it is 18 completely unrelated to the relief sought in the FAC, which concerns religious exercise 19 rights to a religious diet. Moreover, Plaintiff has not tied any alleged retaliation to the 20 Defendants in the present case. And he fails to demonstrate irreparable harm. 21 Plaintiff can file a separate lawsuit raising a retaliation claim. A retaliation claim 22 has five basic elements: (1) an assertion that a state actor took some adverse action 23 against an inmate (2) because of (3) that prisoner=s protected conduct and that such action 24 (4) chilled the inmate=s exercise of his First Amendment rights (or that the inmate 25 suffered more than minimal harm) and (5) the action did not reasonably advance a 26 legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005). 27 The Court notes that Plaintiff’s allegations do not tie the action taken to a retaliatory 28 -3- 1 motive except based on the timing of this Court’s denial of summary judgment in the 2 present case. 3 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 4 Plaintiff’s Motion for Prospective Relief and Temporary Restraining Order (Doc. 73) and 5 the Motion is denied. 6 DATED this 12th day of December, 2013. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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