Portugal v. Felker

Filing 11

ORDER signed by Circuit Judge Sidney Thomas on 1/9/09 ORDERING Pltf's 1 Motion for Temporary Restraining Order is DENIED without prejudice. (Engbretson, K.)

1 2 3 4 5 6 7 8 9 10 11 Daniel Portugal, 12 Plaintiff, 13 v. 14 T. Felker, et. al., 15 Defendants. 16 _____________________________/ 17 Plaintiff, a state prisoner proceeding pro se, filed a request for a temporary restraining order 18 on September 22, 2008 against the Warden and custody staff of the High Desert State Prison 19 ("HDSP"). Plaintiff alleges that unspecified custody staff have threatened his physical safety. He also 20 alleges that the Warden has opened his legal mail outside his presence in violation of his constitutional 21 rights. Plaintiff also appears to challenge his transfer to High Desert State Prison. 22 The legal principles applicable to requests for injunctive relief, such as a temporary restraining 23 order, are well established. To prevail, the moving party must show either a likelihood of success on 24 the merits of the underlying controversy and the possibility of irreparable injury, or that serious 25 questions are raised and the balance of hardships tips sharply in the movant's favor. See Coalition for 26 Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle 27 Publ'g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The two formulations represent two points on a 28 -11:08-cv-02226-SRT (PC) 2: 08-cv-02226-SRT (PC) ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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sliding scale with the focal point being the degree of irreparable injury shown. See Oakland Tribune, 762 F.2d at 1376. Under any formulation of test, however, the moving party must demonstrate that there exists a significant threat of irreparable injury. See id. In the absence of a significant showing of possible irreparable harm, the court need not reach the issue of likelihood of success on the merits. See id. The loss of money, or an injury whose measure of damages can be calculated in terms of money, will not be considered irreparable. See id. at 1334-35. Plaintiff's request fails under these standards because Plaintiff has not made a showing of a significant threat of "irreparable injury." Plaintiff's claims regarding his treatment by custody staff are general and conclusory and do not refer to specific incidents by date or specific parties involved. In addition, Plaintiff does not specify any threat of irreparable harm in conjunction with his claim that his legal mail was opened outside his presence. Furthermore, Plaintiff has not complied with Local Rules of this Court requiring documents to be filed in conjunction with a request for a Restraining Order. See, e.g., Local Rule 65-231(c) (concerning documents required to be provided to the Court), especially Local Rules 65-231(c)(4) (requiring "an affidavit in support of the existence of an irreparable injury"). The Court notes that the Federal Rules of Civil Procedure require that complaints, including complaints brought under 42 U.S.C. § 1983, contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint must give the defendant fair notice of the plaintiff's claim and the grounds on which it rests. Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). The plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims. See Jones v. Cmty Dev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984). IT IS ORDERED: The request for a temporary restraining order (Doc. # 1) is DENIED without prejudice. DATED: January 9, 2009 /s/ Sidney R. Thomas Sidney R. Thomas, United States Circuit Judge Sitting By Designation -2-