Tenore v. Goodgame et al

Filing 26

ORDER denying 25 Motion for temporary restraining order signed by Magistrate Judge Carolyn K. Delaney on 09/26/12. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL TENORE,

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Plaintiff,

No. 2:11-cv-1082 WBS CKD P

vs.
NATHANAEL GOODGAME, et al.,
Defendants.

ORDER
/

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks

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relief pursuant to 42 U.S.C. § 1983. Defendants have answered the complaint and discovery is

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underway. (Dkt. Nos. 16, 17.) On September 18, 2012, plaintiff filed a motion for a temporary

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restraining order preventing prison officials from transferring him “to a level II prison in

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Chowchilla.” He claims that, as a retired police officer, he will not be safe in the dormitory

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setting of this prison, and that the stress of the transfer has caused him heart problems. He

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asserts that a transfer will hinder his ability to meet legal deadlines in this action. And he asserts

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that, as a result of the move, he will lose his inmate legal assistant. He argues that these factors

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constitute irreparable harm and warrant immediate injunctive relief. (Dkt. No. 25.)

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The purpose in issuing a temporary restraining order is to preserve the status quo
pending a fuller hearing. The cases contain limited discussion of the standards for issuing a
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temporary restraining order due to the fact that very few such orders can be appealed prior to the

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hearing on a preliminary injunction. It is apparent however, that requests for temporary

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restraining orders which are not ex parte and without notice are governed by the same general

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standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v.

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Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch.

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Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting);

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Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990).

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The legal principles applicable to a request for injunctive relief are well
established. To prevail, the moving party must show either a likelihood of success on the merits

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and the possibility of irreparable injury, or that serious questions are raised and the balance of

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hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122

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F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

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1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

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point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under

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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

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irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

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court need not reach the issue of likelihood of success on the merits. Id.

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Here, the complaint alleges deliberate indifference to plaintiff’s serious medical

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needs, specifically to a scabies outbreak that affected plaintiff between September 2009 and April

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2010. (Dkt. No. 1 at 5.) The instant motion for injunctive relief has nothing to do with the

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operative claims in this case. Thus plaintiff’s request for injunctive relief is beyond the scope of

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the case or controversy before this court. See Benyamini v. Manjuano, 2011 WL 4963108 (E.D.

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Cal. Oct. 18, 2011) (“This Court lacks jurisdiction to issue an order requiring prison officials to

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transfer [plaintiff] based on retaliatory acts occurring after this action was filed, because the

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Court does not have such a case or controversy before it in this action. [Citations.]”) Moreover,

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in Meachum v. Fano, 427 U.S. 215 (1976), the United States Supreme Court explicitly held that
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prisoners do not have a constitutional right to be housed at a particular prison within a state’s

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prison system. See also Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (“An inmate’s

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liberty interests are sufficiently extinguished by his conviction so that the state may change his

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place of confinement even though the degree of confinement may be different and prison life

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may be more disagreeable in one institution than in another.”).

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Plaintiff is advised, however, that if the transfer renders him unable to meet his

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deadlines in this action, plaintiff may seek an extension of time explaining his circumstances, and

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the court will consider any reasonable accommodation.

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Accordingly, IT IS HEREBY ORDERED THAT plaintiff’s motion for temporary
restraining order (Dkt. No. 25) is denied for the reasons set forth above.
Dated: September 26, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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