Miller v. Kernan

Filing 9

ORDER DENYING 7 Motion for TRO and Motion for Preliminary Injunction signed by Magistrate Judge Michael J. Seng on 2/24/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARROD JOSEPH MILLER,

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Plaintiff,

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v.
SCOTT KERNAN,

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Defendant.

CASE NO. 1:17-cv-00173-MJS (PC)
ORDER DENYING REQUEST FOR
TEMPORARY RESTRAINING ORDER
AND MOTION FOR PRELIMINARY
INJUNCTION
(ECF No. 7)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate

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Judge jurisdiction. (ECF No. 8.) No other parties have appeared in the action.

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Before the Court is Plaintiff’s February 17, 2017 request for a temporary

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restraining order and preliminary injunction. (ECF No. 7.) Therein, Plaintiff seeks to be

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housed in a single cell.

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I.

Legal Standard

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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

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On February 14, 2017, the Court screened Plaintiff’s complaint, concluded that it

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failed to state a claim upon which relief could be granted, and dismissed it with leave to

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amend. (ECF No. 6.) Thus, at this stage of the proceedings, there is no operative

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pleading and Plaintiff has heretofore failed to state a cognizable claim. The Court

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therefore cannot opine that Plaintiff is likely to succeed on the merits of his claims.

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Additionally, Plaintiff’s allegations do not suggest a real and immediate threat of

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irreparable injury. Rather, his concerns that he will be attacked if housed with a cell mate

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appear to be largely hypothetical. See City of Los Angeles v. Lyons, 461 U.S. 95, 101–

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102 (1983) (plaintiff must show “real and immediate” threat of injury, and “[p]ast

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exposure to illegal conduct does not in itself show a present case or controversy

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regarding injunctive relief . . . if unaccompanied by any continuing, present, adverse

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effects.”).

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Plaintiff does not address the third or fourth elements, the balancing of equities

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and public interest concerns. At this stage, there is nothing to tip the balance of equities

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in Plaintiff’s favor. And, while the public has an interest in protecting inmates from harm,

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the record before the Court does not justify the Court substituting its judgment regarding

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Plaintiff’s housing placement for that of institutional staff.

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The various criteria not having been met, Plaintiff is not entitled to injunctive relief.
III.

Conclusion and Order
Based on the foregoing, Plaintiff’s request for a temporary restraining order and

motion for preliminary injunctive relief are HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

February 24, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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