Fierro v. Wilmot
Filing
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ORDER that Plaintiff's Motion/Ruling for a Typewriter (Doc. 34 ) and Motion for Ruling (Doc. 35 ) are denied. See the attached order for additional information. Signed by Senior Judge James A. Teilborg on 11/18/2020. (RMW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jose Luis Tapia Fierro,
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No. CV 19-03096-PHX-JAT
Plaintiff,
v.
ORDER
Leon N. Wilmot,
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Defendant.
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Plaintiff Jose Luis Tapia Fierro, who is currently confined in the Arizona State
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Prison Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983.
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(Doc. 1.) Before the Court are Plaintiff’s Motion/Ruling for a Typewriter (Doc. 34) and
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Motion for Ruling (Doc. 35), which the Court construes as requests for injunctive relief.
The Court will deny Plaintiff’s Motions.
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I.
Background
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In his three-count Complaint, Plaintiff sues Yuma County Sheriff Leon Wilmot.
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(Doc. 1.) In Counts One and Two, Plaintiff asserts Fourth and Fifth Amendment claims
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based on his alleged illegal detention at the Yuma County Jail. (Id.) In Count Three,
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Plaintiff claims that Defendant detained him without a signed arrest warrant in violation of
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“an Injunction Judgment.” (Id.) On screening under 28 U.S.C. § 1915A(a), the Court
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determined that Plaintiff stated a Fourth Amendment illegal seizure claim against
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Defendant in his personal capacity and directed Defendant to answer that claim. (Doc. 9
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at 3–4.) The Court dismissed Plaintiff’s Fifth Amendment and injunction judgment
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violation claims. (Id. at 5.)
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Defendant subsequently moved for summary judgment (Docs. 17, 19), and the
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Court granted summary judgment as to the portion of Plaintiff’s Fourth Amendment claim
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regarding his April 4, 2017 detention and denied summary judgment as to the portion of
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Plaintiff's Fourth Amendment claim regarding his continued detention on May 26, 2017
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after he posted bond. (Doc. 26.)
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A settlement conference was conducted on September 2, 2020, but the parties were
unable to reach a settlement, and the case was set for trial. (Doc. 31.)
II.
Preliminary Injunction Standard
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“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should
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not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”
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Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520
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U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555
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U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy
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never awarded as of right”). A plaintiff seeking a preliminary injunction must show that
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(1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without
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an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the
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public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are
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‘serious questions going to the merits’—a lesser showing than likelihood of success on the
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merits—then a preliminary injunction may still issue if the ‘balance of hardships tips
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sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell
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Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance
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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious
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questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger
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showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at
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1072.
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Regardless of which standard applies, the movant “has the burden of proof on each
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element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,
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1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a
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mandatory preliminary injunction, which should not be granted “unless the facts and law
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clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th
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Cir. 1986) (citation omitted).
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The Prison Litigation Reform Act imposes additional requirements on prisoner
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litigants who seek preliminary injunctive relief against prison officials and requires that
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any injunctive relief be narrowly drawn and the least intrusive means necessary to correct
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the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987,
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999 (9th Cir. 2000).
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III.
Plaintiff’s Motions
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In his Motions, Plaintiff asks the Court to order the Arizona Department of
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Corrections to provide him with a word processor or a typewriter so that he can comply
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with the pretrial deadlines the Court set in its September 22, 2020 Order (Doc. 33). (Docs.
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34, 35.)
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Plaintiff does not address any of the Winter factors required for obtaining
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preliminary injunctive relief. Nor does he provide any sworn affidavits or other admissible
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evidence to support his Motions. A motion for preliminary injunction, including the
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likelihood of irreparable injury, must be supported by “[e]vidence that goes beyond the
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unverified allegations of the pleadings.” Fidelity Nat’ l Title Ins. Co. v. Castle, C 11-0896
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SI, 2011 WL 5882878, at *3 (N.D. Cal. 2011) (internal citation omitted). Affidavits are
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appropriate on a motion for a preliminary injunction if they are based on personal
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knowledge and “state the facts supporting the litigant’s position clearly and specifically.”
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11A Charles A. Wright, Arthur K. Miller & Mary K. Kane, Federal Practice and Procedure
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§ 2949 at 216-217 (2d ed. 1995); see Ross-Whitney Corp. v. Smith Kline & French Labs.,
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207 F.2d 190, 198 (9th Cir. 1953) (a preliminary injunction may be granted on affidavits).
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Plaintiff fails to explain why he needs a typewriter, and a review of the documents Plaintiff
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has filed so far in this case, including the instant Motions, shows that his handwriting his
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neat and clearly legible. Accordingly, the Court will deny Plaintiff’s requests for injunctive
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relief.
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IT IS ORDERED that Plaintiff’s Motion/Ruling for a Typewriter (Doc. 34) and
Motion for Ruling (Doc. 35) are denied.
Dated this 18th day of November, 2020.
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