Bennett v. Asuncion, et al.
Filing
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ORDER DENYING 17 REQUEST FOR INJUNCTIVE RELIEF AND ATTORNEY'S FEES signed by Magistrate Judge Michael J. Seng on 7/2/2017. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID BENNETT,
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Plaintiff,
v.
DEBBIE ASUNCION, et al.,
Defendants.
CASE No. 1:16-cv-1749-MJS (PC)
ORDER DENYING REQUEST FOR
INJUNCTIVE RELIEF AND ATTORNEY’S
FEES
(ECF NO. 17)
FOURTEEN-DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a
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magistrate judge. On January 9, 2017, Plaintiff’s complaint was dismissed with leave to
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amend. Plaintiff was recently granted his third and final extension of time to file his
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amended pleading, which is now due on July 19, 2017. No other parties have yet
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appeared in this action.
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Pending now is Plaintiff’s June 2, 2017, request for injunctive relief and attorney’s
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fees. (ECF No. 17.) Plaintiff seeks protection from California Department of Corrections
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and Rehabilitation staff members whom he accuses of retaliating against him in various
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ways for initiating this action.
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I.
Legal Standards
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The purpose of a temporary restraining order is to preserve the status quo before
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a preliminary injunction hearing may be held; its provisional remedial nature is designed
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merely to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v.
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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil
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Procedure 65, a temporary restraining order may be granted only if “specific facts in an
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affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or
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damage will result to the movant before the adverse party can be heard in opposition.”
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Fed. R. Civ. P. 65(b)(1)(A).
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The standard for issuing a temporary restraining order is identical to the standard
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for a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co.,
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Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary
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and drastic remedy, never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-90
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(2008) (citations omitted). A plaintiff seeking a preliminary injunction must establish that
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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
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absence of preliminary relief, that the balance of equities tips in his favor, and that an
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injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20
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(2008). A preliminary injunction may issue where the plaintiff demonstrates the existence
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of serious questions going to the merits and the hardship balance tips sharply toward the
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plaintiff, assuming the other two elements of the Winter test are also met. Alliance for the
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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either
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formulation of the principles, preliminary injunctive relief should be denied if the
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probability of success on the merits is low. See Johnson v. Cal. State Bd. of
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Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (even if the balance of hardships tips
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decidedly in favor of the moving party, it must be shown as an irreducible minimum that
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there is a fair chance of success on the merits).
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In cases brought by prisoners involving conditions of confinement, any preliminary
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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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II.
Discussion
On January 9, 2017, the Court screened Plaintiff’s complaint and dismissed it with
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leave to amend in light of Plaintiff’s admission that he did not exhaust his administrative
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remedies prior to filing suit. Plaintiff has recently been granted an extension of time to file
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an amended pleading. Thus, at this stage of the proceedings, there is no operative
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pleading. The Court therefore cannot opine that Plaintiff is likely to succeed on the merits
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of his claims.
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Furthermore, no Defendants have yet appeared in this action, and the Court does
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not have jurisdiction to order injunctive relief which would require directing parties not
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before the Court to take action. Zepeda v. United States Immigration & Naturalization
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Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has
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personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may
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not attempt to determine the rights of persons not before the court.”).
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Plaintiff has also requested attorney’s fees pursuant to 18 U.S.C. § 3006A. This
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section, titled “Adequate Representation of Defendants,” concerns the appointment of
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attorneys for indigent defendants in criminal action and is inapplicable to this civil rights
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case initiated by Plaintiff.
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III.
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Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s June 2, 2017,
motion for injunctive relief and attorney’s fees (ECF No. 17) is DENIED.
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IT IS SO ORDERED.
Dated:
July 2, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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