Brush v. Woodford et al

Filing 135

ORDER Denying Plaintiff's 122 Motion for a Temporary Restraining Order, signed by District Judge Lawrence J. O'Neill on 6/24/11. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARY H. BRUSH,

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CASE NO. 1:07-cv-01009-LJO-SMS PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION FOR
A TEMPORARY RESTRAINING ORDER

v.
(ECF No. 122)

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J. WOODFORD, et al.,
Defendants.
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Plaintiff Gary H. Brush (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s first amended complaint against Defendant Harper for refusing to provide Plaintiff with

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his pain medication on August 11, 2005, August 19, 2005, and September 1, 2005; Defendant Lee

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for failing to summon medical attention after Plaintiff fell down; Defendants Lee and Jasso for

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refusing to give him medication on December 26, 2005; Defendants King and Catalano for taking

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away Plaintiff’s wheelchair on July 4, 2006; Defendants Rangel, Cano, Gonzales, and Green for

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excessive force on September 14, 2006; and Defendants Harper, Catalano, Rangel, Cano, Gonzalez,

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and Greene for retaliation. On March 25, 2011, Plaintiff filed a motion for a temporary restraining

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order requiring that he be provided with adequate pain medication, be provided with the plan of

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treatment previously prescribed by a specialist, be referred immediately to a specialist and be

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required to provide the treatment the specialist recommends. Plaintiff alleges that his medical

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providers are not providing him with pain medication and his appointments with specialists and for

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testing are being cancelled.
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“A temporary restraining order is designed to preserve the status quo until there is an

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opportunity to hold a hearing on the application for a preliminary injunction.” Whitman v. Hawaiian

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Tug and Barge Corp./Young Bros. Ltd. Salaried Pension Plan, 27 F.Supp.2d 1225, 1228 (D. Haw.

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1998). The factors considered for issuing a temporary restraining order are the same as the standards

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for issuing a preliminary injunction. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.

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2008).

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

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Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff

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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is

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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

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in his favor, and that an injunction is in the public interest.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) quoting Winter, 129 S. Ct. at 374. An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter,

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129 S. Ct. at 376 (citation omitted) (emphasis added).

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For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield

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v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This requires

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Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete and

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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be

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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial

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decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

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(2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).

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In addition, any award of equitable relief is governed by the Prison Litigation Reform Act,

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which provides in relevant part, “Prospective relief in any civil action with respect to prison

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conditions shall extend no further than necessary to correct the violation of the Federal right of a

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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless

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the court finds that such relief is narrowly drawn, extends no further than necessary to correct the

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violation of the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
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The claims that are proceeding in this action are for individual incidents where correctional

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officers failed to provide Plaintiff with his pain medication, confiscated his wheel chair, and used

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excessive force. The pendency of this action does not confer on the Court jurisdiction to issue an

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order directing Plaintiff’s medical providers, who are not defendants in this action, to grant the relief

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requested. Additionally such an order would not remedy the underlying legal claim, which involves

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Defendants’ past conduct. 18 U.S.C. § 3626(a)(1)(A); Summers, 129 S. Ct. 1142 at 1149; Mayfield,

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599 F.3d at 969. Accordingly, Plaintiff’s motion for a temporary restraining order is HEREBY

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DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

June 24, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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