Crime, Justice & America, Inc. et al v. McGinness, Sheriff

Filing 90

ORDER signed by District Judge Troy L. Nunley on 12/9/13 ORDERING that Plaintiffs' Motion for Preliminary Injunction 78 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CRIME, JUSTICE & AMERICA, INC., a
California Corporation; and RAY
HRDLICKA, an individual,

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Plaintiffs,

No. 2:08-cv-00394-TLN-AC

ORDER

v.
SCOTT JONES, in his official capacity as
Sheriff of the County of Sacramento,
California,
Defendant.

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This matter is before the court on Plaintiffs’ Motion for a Preliminary Injunction. (ECF

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No. 78.) Defendant has filed an opposition to the motion, (ECF No. 86), and Plaintiffs a reply,

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(ECF No. 87). Finding that oral argument would not be of material assistance, see E.D. Cal. L.R.

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230(g), the matter was submitted on the briefs, (ECF No. 89). The Court has carefully considered

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the arguments presented by both parties. For the reasons set forth below, Plaintiffs’ Motion for a

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Preliminary Injunction is DENIED.

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BACKGROUND

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Plaintiffs are publishers of Crime, Justice & America magazine, a quarterly publication

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with content germane to inmates awaiting trial. The magazine also includes advertisements for
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bail bondsmen and criminal-defense attorneys, and it is usually distributed—with cooperation

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from local jails—to inmates in custody. In this case, Plaintiffs asked Sacramento County Jail to

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distribute their magazine to the inmates, and Sacramento County Jail officials refused. Plaintiffs

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brought this lawsuit in February of 2008 seeking a declaratory judgment affirming their right to

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distribute their magazine in the Sacramento County Jail and an injunction enjoining the

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Sacramento County Sheriff from prohibiting the distribution of the magazine. (ECF No. 1.)

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After the case was remanded from the Ninth Circuit,1 Plaintiffs and Defendant engaged in

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settlement discussions, and Defendant told Plaintiffs the Sacramento Main Jail would accept

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copies of Crime, Justice & America magazine. (Decl. Amanda L. McDermott, Ex. 4, Decl. John

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A. Lavra ¶¶ 4–10, ECF No. 86-1.) Plaintiffs, however, point to evidence which, they argue,

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establishes that the magazines are not in fact being distributed to inmates at the Sacramento

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County Jail. Specifically, Plaintiff Ray Hrdlicka declares he usually expects “to receive letters

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from inmates immediately as well as receive confirmation from advertisers of inmate collect

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calls”; however, after the initial mailing, no letters or confirmations from advertisers were

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received for nearly eight weeks. (Decl. Hrdlicka ¶¶48–52, ECF No. 80.) Moreover, Plaintiff

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Hrdlicka sent letters to 130 inmates who were in Sacramento County Jail at the time and to whom

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the magazine had been directly mailed. (Id. ¶ 58.) Plaintiff received “47 declarations from

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inmates who each declared that they did not receive the magazine that was sent to them.” (Id.

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¶ 59.) Defendant counters with a declaration from the mailroom deputy at Sacramento County

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Jail, who declares that he “always delivered the publication and allowed the receiving inmate to

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decide whether to keep it or throw it away.” (Decl. McDermott, Ex. 1, Decl. Alfonso Ceja ¶ 11,

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ECF No. 86-1.)

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Believing that Crime, Justice & America magazine was not being distributed to inmates,
Plaintiffs now move for a preliminary injunction.

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STANDARD

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Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

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The factual background of this case is set forth in greater detail in the Ninth Circuit’s opinion, Hrdlicka v.
Reniff, 631 F.3d 1044 (9th Cir. 2011).

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showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555

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U.S. 7, 20 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Under

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Federal Rule of Civil Procedure 65, a court may issue a preliminary injunction to preserve the

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relative positions of the parties pending a trial on the merits. Univ. of Tex. v. Camenisch, 451

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U.S. 390, 395 (1981). “A plaintiff seeking a preliminary injunction must establish [1] that he is

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likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

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preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in

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the public interest.” Winter, 555 U.S. at 20.

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Further, the Ninth Circuit has held that the “sliding scale test for preliminary injunctions

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remains viable after the Supreme Court’s decision in Winter.” Alliance for the Wild Rockies, 632

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F.3d 1127, 1134 (9th Cir. 2011). Under this test, the plaintiff must “make a showing on all four

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prongs” of the Winter test to obtain an injunction; however, if a plaintiff establishes a “balance of

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hardships tip sharply in the plaintiff’s favor” and “serious questions going to the merits,” a

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preliminary injunction may issue on a lesser showing of irreparable injury and that the injunction

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is in the public interest, so long as the court considers all four factors. Id. at 1135 (citing Miller v.

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Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)). However, the court need not reach the

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other prongs if the plaintiff cannot as a threshold matter demonstrate at least a “fair chance of

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success on the merits.” Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (quoting

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Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2008)).

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ANALYSIS

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Plaintiffs seek an order compelling Defendant, Sheriff of Sacramento County, to

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“distribute Crime, Justice & America to inmates at Sacramento County Jail as mailed in and

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addressed to individual inmates.” (ECF No. 87-1, at 2:8–10.) As such, Plaintiffs request a

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mandatory preliminary injunction. “When a mandatory preliminary injunction is requested, the

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district court should deny such relief unless the facts and law clearly favor the moving party.”

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Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994); accord Park Vill. Apartment

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Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011), cert. denied, 132

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S. Ct. 756 (“[A] mandatory injunction is particularly disfavored. In general, mandatory
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injunctions are not granted unless extreme or very serious damage will result[,] and are not issued

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in doubtful cases.”). Moreover, a district court should also weigh a party’s delay in seeking a

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preliminary injunction in balancing the equities as part of the analysis to decide whether a

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preliminary injunction should issue. W. Watersheds Project v. Salazar, 692 F.3d 921, 923 (9th

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Cir. 2012) (“The District Court also properly exercised its discretion in weighing Appellant’s

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delay in seeking a preliminary injunction . . . among the equitable factors.”).

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Here, Plaintiffs waited to file a motion for a preliminary injunction until after five years of

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litigation had elapsed. Moreover, the Ninth Circuit has previously held in this case there exist

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genuine disputes of material fact whether the Sacramento County Jail had legitimate penological

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concerns that distributing Crime, Justice & America magazine would “adversely affect prison

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security,” Hrdlicka v. Reniff, 631 F.3d 1044, 1052 (9th Cir. 2011), since inmates may be more

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likely to use unsolicited, unrequested periodicals to clog toilets and windows. See Prison Legal

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News v. Cook, 238 F.3d 1145, 1150 (9th Cir. 2001) (“The only question is whether prison

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administrators reasonably could have thought the regulation would advance legitimate

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penological interests.”). Although Plaintiffs are correct that the standards on summary judgment

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and for a preliminary injunction “are . . . different,” (Pls.’ Reply to Opp’n of Mot. for Prelim. Inj.

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10:6–7, ECF No. 87), after review of Plaintiffs’ motion and attached supporting evidence, the

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Court finds that Plaintiff has not demonstrated that “the facts and law clearly favor” its position

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such that Plaintiffs have established a likelihood of success on the merits. Stanley, 13 F.3d at

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1320; see also Pimental, 670 F.3d at 1111 (holding a court need not reach the other prongs of the

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Winter test if the plaintiff cannot as a threshold matter demonstrate at least a “fair chance of

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success on the merits”). Moreover, granting Plaintiffs the “extraordinary remedy” they seek,

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Winter, 555 U.S. at 20—an order mandating that the Sacramento County Jail distribute their

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publication—seems particularly problematic here since the jail officials themselves declare they

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are already distributing the magazine and will continue to do so until a final determination on the

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merits. Cf. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988) (“[C]essation of the

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allegedly illegal conduct by government officials has been treated with more solicitude by the

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courts than similar action by private parties.”). Considering the foregoing together with
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Plaintiff’s delay in seeking a preliminary injunction—more than five years since this litigation

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began—Plaintiffs have not “satisfied . . . the heightened standard [the Ninth Circuit] ha[s]

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adopted with respect to mandatory injunctions.” Park Vill. Apartment Tenants Ass’n, 636 F.3d at

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1161.

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CONCLUSION
Based on the foregoing, Plaintiffs’ motion for a preliminary injunction (ECF No. 78) is
DENIED.
IT IS SO ORDERED
Dated: December 9, 2013

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Troy L. Nunley
United States District Judge

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