Green v. David et al

Filing 13

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Dennis L. Beck on 8/27/10: Recommending that Plaintiff's Motion for Temporary Restraining Order, filed April 1, 2010, should be DENIED; 10 MOTION for TEMPORARY RESTRAINING ORDER filed by Vencil C. Green and 1 Prisoner Civil Rights Complaint filed by Vencil C. Green referred to Judge Ishii; Objections to F&R due by 9/20/2010. (Hellings, J)

(PC) Green v. David et al

Doc. 13

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 VENCIL GREEN, 9 10 v. Plaintiff, CASE NO. 1:09-CV-01747-AWI-DLB PC FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER BE DENIED (DOC. 10) 12 13 14 15 Plaintiff Vencil Green ("Plaintiff") is a California state prisoner proceeding pro se and in Defendants. OBJECTIONS DUE WITHIN 21 DAYS /

UNITED STATES DISTRICT COURT

11 B. S. DAVID, et al.,

16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding on 17 his complaint, filed October 5, 2009, against Defendants B. S. David, H. A. Miranda, A. Guerra, 18 C. Hazel, R. Burnitzki, and D. K. Williams for use of excessive force in violation of the Eighth 19 Amendment. Pending before the Court is Plaintiff's motion for temporary restraining order, filed 20 April 1, 2010. 21 Plaintiff seeks a temporary restraining order pursuant to Federal Rule of Civil Procedure

22 65(b). A temporary restraining order may be issued without notice to the adverse party only if: 23 specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable 24 injury will result to be movant before the adverse party can be heard in opposition. Fed. R. Civ. 25 P. 65(b). In order to demonstrate the need for a temporary restraining order or for preliminary 26 injunctive relief, a party must show "that he is likely to succeed on the merits, that he is likely to 27 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 28 favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 1
Dockets.Justia.com

1 129 S. Ct. 365, 374 (2008) (citations omitted). 2 Plaintiff contends that Defendant B. S. David threatened Plaintiff with bodily harm.

3 Plaintiff fails to demonstrate specific facts which indicate immediate injury to Plaintiff. An 4 allegation of threats of bodily harm is too vague as to indicate specificity, immediacy, or 5 likelihood of harm. The harm Plaintiff suffered allegedly occurred in March 2009. Any harm in 6 the future would be discrete from the harm alleged in Plaintiff's complaint. Verbal harassment 7 alone is insufficient to state a § 1983 claim, see Oltarzweski v. Ruggiero, 830 F.2d 136, 139 (9th 8 Cir. 1987), and even threats of bodily injury are insufficient, because a mere threat is not the 9 equivalent of the act itself, Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 10 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion for

11 temporary restraining order, filed April 1, 2010, should be DENIED. 12 These Findings and Recommendations will be submitted to the United States District

13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty14 one (21) days after being served with these Findings and Recommendations, the plaintiff may 15 file written objections with the court. The document should be captioned "Objections to 16 Magistrate Judge's Findings and Recommendations." The plaintiff is advised that failure to file 17 objections within the specified time may waive the right to appeal the District Court's order. 18 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 23 24 25 26 27 28 2 IT IS SO ORDERED. Dated: 3b142a

August 27, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE