Moore v. Gipson et al

Filing 11

ORDER DENYING 9 Motion for Order to Show Cause for a Preliminary and Temporary Restaining Order signed by Magistrate Judge Barbara A. McAuliffe on 7/2/2014. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MERRICK JOSE MOORE,

12
13
14
15
16
17
18

Plaintiff,
v.
CONNIE GIPSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-01820-BAM (PC)
ORDER DENYING MOTION FOR ORDER TO
SHOW CAUSE FOR A PRELIMINARY AND
TEMPORARY RESTRAINING ORDER
(ECF No. 9)

Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

20

November 12, 2013. Plaintiff’s complaint concerns events alleged to have occurred while Plaintiff

21

was housed at Corcoran State Prison between January 9, 2012, and July 13, 2013. (ECF No. 9.)

22

On March 6, 2014, Plaintiff filed a motion seeking a temporary restraining order and order to

23

show cause for a preliminary injunction against Connie Gipson, M. Jennings, M.T. Cisneros, R.

24

Chavez, Escobar, D. Ryder and T. Wyman to prevent Plaintiff’s transfer to a more restrictive

25

institution and to remove him from Administrative Segregation. This matter has not been screened

26

and no defendants have appeared in this action. The motion is deemed submitted. Local Rule 230(l).

27

The analysis for a temporary restraining order is substantially identical to that for a preliminary

28

injunction, Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 (9th
1

1

Cir. 2001), and “[a] preliminary injunction is an extraordinary remedy never awarded as of right.”

2

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376 (2008) (citation

3

omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

4

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

5

balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations

6

omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to

7

relief. Id. at 22 (citation omitted).

8

Federal courts are courts of limited jurisdiction and in considering a request for preliminary

9

injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before it

10

an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665

11

(1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.

12

464, 471, 102 S.Ct. 752, 757-58 (1982). If the Court does not have an actual case or controversy

13

before it, it has no power to hear the matter in question. Id. Requests for prospective relief are further

14

limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the

15

Court find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the

16

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

17

Federal right.”

18

In his moving papers, Plaintiff claims that he was seen by a committee on May 30, 2013, and

19

recommended for transfer (non adverse) to Lancaster 270 IV GP for filing institutional paperwork and

20

grievances. (ECF No. 9, p. 4.) According to supporting documents, however, the committee rescinded

21

the transfer recommendation on August 6, 2013, after the events alleged in his complaint. (ECF No. 9,

22

p. 19.) Plaintiff now seeks an injunction to prevent his transfer to High Desert State Prison. (ECF No.

23

9, p. 2.) Plaintiff also appears to complain of retaliation and his retention in administrative segregation

24

in September and November 2013, after the events alleged in is complaint. (ECF No. 9, pp. 23-25.)

25

With regard to the transfer, convicted prisoners have no reasonable expectation that they will

26

remain in any particular facility, and prison officials have broad authority to transfer prisoners from

27

one facility to another. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976);

28

Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). “[A] prisoner’s liberty
2

1

interests are sufficiently extinguished by his conviction that the state may generally confine or transfer

2

him to any of its institutions, indeed, even to a prison in another state, without offending the

3

Constitution.” Bravo v. Hewchuck, 2006 WL 3618023, *1 (N.D.Cal.2006) (citations omitted).

4

Further, the case or controversy requirement cannot be met because the transfer to High Desert

5

State Prison and administrative segregation issues Plaintiff seeks to remedy in his motion bear no

6

relation, jurisdictionally, to the past events giving rise to this suit. Lyons, 461 U.S. at 102; 18 U.S.C. §

7

3626(a)(1)(A); also Summers v. Earth Island Inst., 555 U.S. 488, 491-92, 129 S.Ct. 1142, 1148-49

8

(2009); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04, 118 S.Ct. 1003 (1998). Indeed, it

9

appears that the conduct complained of in this motion concerns events outside of those alleged in his

10

complaint. Because the case-or-controversy requirement cannot be met, the pendency of this action

11

provides no basis upon which to award Plaintiff injunctive relief. Id. The only relief available to

12

Plaintiff in this action, should he prevail, is money damages for the past violation of his constitutional

13

rights while housed at Corcoran State Prison in 2012 and 2013. Indeed, Plaintiff’s complaint does not

14

seek injunctive relief.

15

Additionally, Plaintiff’s requests related to his transfer, retaliation and retention in

16

administrative segregation are now moot based on his transfer from Corcoran State Prison to High

17

Desert State Prison as of March 6, 2014. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (per

18

curiam) (stating that transfer to another prison renders request for injunctive relief concerning prison

19

conditions moot absent some evidence of an expectation of being transferred back).

20

Even if this were not true, however, Plaintiff fails to demonstrate why or how his transfer to

21

another prison or retention in segregation would cause him to suffer irreparable harm, that the balance

22

of equities tips in his favor and that an injunction is in the public interest. Although Plaintiff claims

23

that an adverse transfer places him “in danger” and in a hostile environment, he does not provide any

24

facts to support this claim. (ECF No. 9; Declaration of Moore ¶ 4.) A conclusory statement is not

25

sufficient to demonstrate that Plaintiff would suffer irreparable harm from a transfer or that the

26

equities tip in his favor. See City of Los Angeles, 461 U.S. at 101–02 (plaintiff must show “real and

27

immediate” threat of injury).

28
3

1
2
3
4
5
6
7
8

Plaintiff also seeks injunctive relief against persons who are not parties to this action, namely
R. Chavez, Escobar, D. Ryder and T. Wyman. Plaintiff may not enjoin unnamed individuals not
before the Court. “A federal court may issue an injunction if it has personal jurisdiction over the
parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of
persons not before the court.” Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th
Cir.1985).
For these reasons, Plaintiff’s motion for a temporary restraining order and order to show cause
for a preliminary injunction, filed December 23, 2013, is DENIED.

9
10
11
12

IT IS SO ORDERED.
Dated:

/s/ Barbara

July 2, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4