Willard v. Neibert et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that 3 Plaintiff's Motion for Temporary Restraining Order be DENIED re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 2/20/2015. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSHUA A. WILLARD,

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Plaintiff,
v.
J. NEIBERT, et al.,
Defendants.

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Case No.: 1:14-cv-01951-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
REGARDING PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER
[ECF No. 3]

Plaintiff Joshua A. Willard is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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I.

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INTRODUCTION

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On December 8, 2014, Plaintiff filed a motion for a temporary restraining order. (ECF No. 3.)

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In the Court’s screening order, issued simultaneously herewith, the Court has found that

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Plaintiff states a cognizable claim for excessive force against Defendants J. Neibert, L. Lara, J.

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Loveall, and J. Westphal.

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In his present motion, Plaintiff seeks to restrain Defendant Lara, Loveall, and Westphal from

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working in his housing unit. Plaintiff contends that on November 25, 2014, he went to “C” medical

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for dental treatment and all three Defendants approached him and called him a “snitch” and “bitch” for

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reporting the misuse of force that took place on May 2, 2014. Defendant Westphal said “we are going
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to beat you again, the only reason why we are not doing it at this time is because there is to many

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people around.” (ECF No. 3, Mot. at 2.)

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II.

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DISCUSSION

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

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

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

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A

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

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

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tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22

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(citation omitted) (emphasis added).

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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must be narrowly drawn, extend no further than necessary to correct the harm the Court finds requires

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preliminary relief, and be the least intrusive means necessary to correct the harm. 18 U.S.C. §

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3626(a)(2).

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The determination of whether Defendants used excessive force against Plaintiff is a disputed

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issue of fact that is the pivotal point of Plaintiff’s claims. “In deciding a motion for a preliminary

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injunction, the district court is not bound to decide doubtful and difficult questions of law or disputed

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questions of fact.” Int’l Molder & Allied Workers Local Union No. 164 v. Nelson, 799 F.2d 547, 551

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(9th Cir. 1986). Certainly at this point in the action based on the limited record, the Court cannot

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resolve the factual dispute, and Plaintiff has not demonstrated a likelihood of success on the merits.

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Beyond merely stating that Plaintiff will suffer “present as well as future irreparable harm,”

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Plaintiff has not shown the likelihood of irreparable injury. Plaintiff’s allegations in the present

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motion are based on a single incident which took place in November 2014, and there is no indication

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that Plaintiff has continuous and regular contact with these Defendants. See City of Los Angeles v.

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Lyons, 461 U.S. 95, 101-102 (1983) (plaintiff must show “real and immediate” threat of injury, and
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“[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding

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injunctive relief …. If unaccompanied by any continuing, present, adverse effects.”). Plaintiff has not

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alleged an immediate threatened injury. Los Angeles Memorial Coliseum Comm’n v. Nat’l Football

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League, 634 F.2d 1197, 1201 (9th Cir. 1980).
Even if Plaintiff could show that the balance of hardship tips in his favor, this factor alone,

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absent a showing of likelihood of success on the merits and irreparable injury, is insufficient to

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warrant imposition of a temporary restraining order.
Although it is in the public interest to ensure an inmate’s safety while housed in a state facility,

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in this instance, the record presently does not support the finding that a temporary restraining order is

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justified to ensure such public interest. Accordingly, Plaintiff’s motion for a temporary restraining

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order should be denied.

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III.

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RECOMMENDATION

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a

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temporary restraining order be DENIED.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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February 20, 2015
UNITED STATES MAGISTRATE JUDGE

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