Harris v. Sexton, et al.

Filing 61

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/11/2020 RECOMMENDING plaintiff's 60 motion for a temporary restraining order be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARNEST S. HARRIS,

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No. 1:18-cv-0080 KJM DB P

Plaintiff,

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v.

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SEXTON, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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

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action pursuant to 42 U.S.C. § 1983. Plaintiff alleges use of the Guard One Security Check

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system at California State Prison-Corcoran (“CSP-Corcoran”) deprived him of sleep in violation

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of the Eighth Amendment. Before the court is plaintiff’s motion for a temporary restraining

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order. (ECF No. 60.) For the reasons set forth below, this court will recommend plaintiff’s

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motion be denied.
BACKGROUND

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This case is proceeding on plaintiff’s second amended complaint filed February 22, 2019.

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Plaintiff alleges defendants are responsible for the implementation and use of the Guard One

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Security Check system in the security housing unit at CSP-Corcoran. That system requires

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officers to touch a metal pipe to a metal box affixed to each cell door in plaintiff’s housing unit.

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Plaintiff alleges this occurs every half hour, all day, every day. As a result of the noise from the

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metal-on-metal contact, plaintiff claims he has suffered and continues to suffer sleep deprivation.

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On June 14, 2019, defendants moved to stay these proceedings pending the resolution of

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an appeal pending before the Ninth Circuit from an order issued in Rico v. Ducart, 2:17-cv-1402

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KJM DB P. (ECF No. 50.) Plaintiff Rico raises similar concerns about the use of the Guard One

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Security Check system. Defendants in that case filed an appeal of the court’s denial of qualified

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immunity to some defendants. On September 11, 2019, the previously-assigned magistrate judge

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recommended defendants’ motion to stay be granted. (ECF No. 52.) Plaintiff filed objections to

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that recommendation. (ECF No. 53.)

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In November 2019, plaintiff sought a preliminary injunction preventing or modifying the

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use of Guard One at CSP-Corcoran. (ECF No. 57.) In December, this court recommended

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plaintiff’s motion be denied. (ECF No. 58.) Plaintiff filed objections to that recommendation.

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(ECF No. 59.)

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MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff seeks an order preventing a psychiatric technician, C. Flores, from coming within

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fifty feet of him. Plaintiff contends he filed a prison grievance complaining that C. Flores is

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violating the Prison Rape Elimination Act (“PREA”) by refusing to announce her presence when

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she conducts security checks in plaintiff’s housing unit. In retaliation for the grievance, C. Flores

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has threatened plaintiff and is conducting security checks much more loudly than necessary by

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“bamming” the Guard One metal pipe against plaintiff’s cell door. That noise is causing plaintiff

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migraine headaches and distress.

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I. Legal Standards

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A party requesting preliminary injunctive relief must show that “he is likely to succeed on

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

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the

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“serious questions” version of the sliding scale test for preliminary injunctions remains viable

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after Winter).

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The principal purpose of preliminary injunctive relief is to preserve the court’s power to

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render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is

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that the relief awarded is only temporary and there will be a full hearing on the merits of the

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claims raised in the injunction when the action is brought to trial. Preliminary injunctive relief is

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not appropriate until the court finds that the plaintiff’s complaint presents cognizable claims. See

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Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court

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may issue an injunction if it has personal jurisdiction over the parties and subject matter

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jurisdiction over the claims . . . .”).

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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 the

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court finds requires preliminary relief, and be the least intrusive means necessary to correct that

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harm.” 18 U.S.C. § 3626(a)(2). Further, an injunction against individuals not parties to an action

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is strongly disfavored. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110

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(1969) (“It is elementary that one is not bound by a judgment . . . resulting from litigation in

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which he is not designated as a party . . . .”).

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II. Analysis

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In the present case, plaintiff is seeking a temporary restraining order against a person who

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is not a party to this case based on allegations of a constitutional claim that he has not raised

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herein. Therefore, this court lacks jurisdiction to issue the injunction plaintiff seeks.

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Plaintiff appears to recognize that he must exhaust his grievances and, if they are

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unsuccessful, file a new action under 42 U.S.C. § 1983 regarding the alleged retaliation by C.

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Flores. That is the appropriate course.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a temporary
restraining order (ECF No. 60) be denied.
These findings and recommendations will be submitted to the United States District Judge

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

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being served with these findings and recommendations, either party may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” The parties are advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: August 11, 2020

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DLB:9
DLB1/prisoner-civil rights/harr0080.tro fr(2)

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