(PC) Van Nort v. Dickinson et al

Filing 33

ORDER signed by Magistrate Judge Kendall J. Newman on 5/16/2011 ORDERING that the #26 motion to compel pltf's release from administrative segregation is DENIED; and the parties will, w/in 30 days, submit briefing on the issue of whether pltf's transfer to administrative segregation renders this case moot. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHARLES E. VAN NORT 11 12 13 Plaintiff, No. 2:09-cv-1566 KJN (TEMP) P vs. KATHLEEN DICKINSON, et al. 14 Defendants. ORDER / 15 16 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis, in 17 an action under 42 U.S.C. § 1983. He has filed a motion to compel defendants to release him 18 from administrative segregation. The court construes the request as a motion for a preliminary 19 injunction. 20 A preliminary injunction should not issue unless necessary to prevent threatened 21 injury that would impair the court’s ability to grant effective relief in a pending action. “A 22 preliminary injunction... is not a preliminary adjudication on the merits but rather a device for 23 preserving the status quo and preventing the irreparable loss of rights before judgment.” Sierra 24 On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary 25 injunction represents the exercise of a far reaching power not to be indulged except in a case 26 clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The 1 1 proper legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is 2 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 3 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 4 public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter 5 v. Natural Res. Def. Council, Inc, 129 S. Ct. 365, 375-76 (2008). In cases brought by prisoners 6 involving conditions of confinement, any preliminary injunction “must be narrowly drawn, 7 extend no further than necessary to correct the harm the court finds requires preliminary relief, 8 and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 9 Plaintiff has failed to demonstrate that any of the relief he presently seeks (i.e., his 10 removal from administrative segregation) is essential to preserve the status quo in the underlying 11 action. More significantly, plaintiff does not demonstrate that in the absence of preliminary relief 12 he is likely to suffer irreparable harm—either on the merits of the instant litigation or, more 13 fundamentally, to his person. “Speculative injury does not constitute irreparable injury sufficient 14 to warrant granting a preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 15 F.2d 668, 674 (9th Cir. 1988), citing Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 16 472 (9th Cir. 1984). Rather, a presently existing actual threat must be shown, although the injury 17 need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 18 130-31 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997), cert. denied, 523 U.S. 19 1020 (1998); Caribbean Marine, supra, 844 F.2d at 674. Because plaintiff has not made the 20 requisite showing, his request for injunctive relief will be denied. 21 Plaintiff’s transfer to administrative segregation raises the jurisdictional issue 22 whether his action has been rendered moot. Plaintiff filed this suit complaining of hazardous 23 conditions related to electrical wiring and outlets on Unit IV Y-Dorm (“Y-Dorm”), where he was 24 assigned when he filed his complaint. As plaintiff put it in his operative pleading, “Plaintiff is 25 only concerned with Y-Dorm and the problems therein.” Second Amended Complaint at 2 (Dkt 26 # 10). Generally, when a prisoner complains of unconstitutional conditions of confinement and 2 1 is transferred to another facility, a claim for injunctive relief from those conditions becomes 2 moot. See Brady v. Smith, 656 F.2d 466, 468 (9th Cir.1981); Darring v. Kinchoe, 783 F.2d 874, 3 876 (9th Cir.1986); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1990). Therefore, plaintiff’s 4 transfer to administrative segregation could have significantly impacted whether the second 5 amended complaint continues to present a justiciable case or controversy—that is, whether this 6 court continues to have jurisdiction over this case. 7 A plaintiff may avoid a finding of mootness if he can demonstrate a reasonable 8 expectation of returning to the facility where the allegedly unconstitutional conditions persist. 9 Darring, 783 F.2d at 876. The court will order the parties to brief whether this case is moot in 10 light of plaintiff’s transfer to administrative segregation. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The motion to compel plaintiff’s release from administrative segregation (Dkt. 13 # 26) is denied. 14 2. The parties will, within thirty days of the entry of this order, submit briefing 15 on the issue of whether plaintiff’s transfer to administrative segregation renders this case moot. 16 DATED: May 16, 2011 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 vann1566.ord 21 22 23 24 25 26 3

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