Gonzales v. Price et al

Filing 48

FINDINGS And RECOMMENDATIONS Recommending Denial Of Plaintiff's Motions For Temporary Restraining Orders and Preliminary Injunctions (ECF Nos. 38 , 39 , & 43 ), signed by Magistrate Judge Gerald B. Cohn on 7/14/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/18/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL GONZALES,

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CASE NO.

1:07-cv-01391-AWI-GBC (PC)

Plaintiff,

Defendants.

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FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PLAINTIFF’S
MOTIONS
FOR
TEMPORARY
RESTRAINING
ORDERS
AND
PRELIMINARY INJUNCTIONS
(ECF Nos. 38, 39, & 43)

v.

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PRICE, et al.,
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/ OBJECTIONS DUE WITHIN THIRTY DAYS

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I.

PROCEDURAL HISTORY
Plaintiff Michael Gonzales (“Plaintiff”) is a state prisoner and is proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action
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proceeds on Plaintiff’s original Complaint filed on September 21, 2007 against Defendants

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Price, Frescura, Vikjoid, Castro, and Pinzon for First Amendment violations (retaliation and

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mail interference). (ECF Nos. 1, 12, & 15.)

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Pending before the Court are three Motions requesting injunctive relief, filed
February 7, 2011, April 13, 2011, and April 29, 2011. (ECF Nos. 38, 39, & 43.)

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II.

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MOTION FOR INJUNCTIVE RELIEF
In the February 7 Motion, Plaintiff alleges that prison officials (not Defendants) are

putting antipsychotic medication in his food.

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In the April Motions1, Plaintiff alleges an excessive use of force by Defendant Price

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which occurred on March 30, 2011 and two other excessive use of force incidents by

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different prison officials (not Defendants).

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III.

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LEGAL STANDARDS
A temporary restraining order (TRO) may be granted without written or oral notice

to the adverse party or that party’s attorney only if: (1) it clearly appears from specific facts

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shown by affidavit or by the verified complaint that immediate and irreparable injury, loss

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or damage will result to the applicant before the adverse party or the party’s attorney can

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be heard in opposition, and (2) the applicant’s attorney certifies in writing the efforts, if any,

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which have been made to give notice and the reasons supporting the claim that notice

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should not be required. See Fed. R. Civ. P. 65(b).

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The standards for a TRO are essentially the same as that for a preliminary

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injunction. To be entitled to preliminary injunctive relief, a party must demonstrate “that he

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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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

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in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

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(citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)). The Ninth

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The April 29, 2011 Motion is alm ost an exact replica of the April 14, 2011 Motion. The
argum ents are exactly the sam e, word for word. There are additional attachm ents included with the April
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Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions

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as it relates to the showing a plaintiff must make regarding his chances of success on the

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merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622

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F.3d 1045, 1052-53 (9th Cir. 2010).

Under this sliding scale, the elements of the

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preliminary injunction test are balanced. As it relates to the merits analysis, a stronger

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showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of

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success on the merits. Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary
injunction “must be narrowly drawn, extend no further than necessary to correct the harm

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the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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IV.

ANALYSIS

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In the February Motion, Plaintiff makes allegations against individuals tainting his

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food. Neither the individuals named in that Motion nor the allegations against them are

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included in this action. In the April Motions, Plaintiff makes allegations against Defendant

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Price and other prison officials about using excessive force. Neither the other prison
officials nor the use of excessive force are included in this action.

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The Court finds that, at this stage in the proceedings, Plaintiff fails to meet the legal

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standards required to be granted injunctive relief. To succeed on such motion, Plaintiff

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must establish that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest. Plaintiff has not addressed any of the
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legal requirements to meet the standard. He does not state anything about the merits of
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this action, does not refer to any irreparable harm, the balance of equities, or the public

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good.

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Furthermore, any relief granted by the Court regarding these allegations would not

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remedy any of the claims upon which this action proceeds. Therefore, the Court lacks

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jurisdiction to issue the order sought by Plaintiff.

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V.

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CONCLUSION
Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s Motions

for Temporary Restraining Orders and Preliminary Injunctions be DENIED.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(1).

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Recommendations, plaintiff may file written objections with the court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the right

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Within thirty (30) days after being served with these Findings and

to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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IT IS SO ORDERED.
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Dated:
1j0bbc

July 14, 2011
UNITED STATES MAGISTRATE JUDGE

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