O'Keefe v. Cate
Filing
136
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/1/2014 RECOMMENDING that plaintiff's 134 motion for injunctive relief be denied. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
TIMOTHY O‟KEEFE,
12
13
14
No. 2:11-cv-2659 KJM KJN P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
JERRY BROWN, et al.,
15
Defendants.
16
17
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
18
to 42 U.S.C. § 1983. Pending before the court is plaintiff‟s motion for a temporary restraining
19
order. (ECF No. 134.) For the following reasons, the undersigned recommends that this motion
20
be denied.
21
This action is proceeding on plaintiff‟s fourth amended complaint. (ECF No. 114.) On
22
January 29, 2014, the undersigned issued an order screening the fourth amended complaint. (ECF
23
No. 115.) The court ordered service of defendant Belavich, Swift, Vasquez, Grawal, Ferguson
24
and Salkowaltz as to plaintiff‟s individual claim that he is not receiving treatment for voyeurism
25
and exhibitionism at California State Prison-Corcoran (“Corcoran”). (Id.)
26
In the pending motion for injunctive relief, plaintiff seeks an order prohibiting Sergeant
27
McLaughlin from retaliating against plaintiff for the filing of an administrative appeal against him
28
on April 17, 2014. Plaintiff alleges that Father Vanissery approved plaintiff‟s request to
1
1
order/possess a religious medal. Plaintiff alleges that Sergeant McLaughlin intercepted the
2
documents approving plaintiff‟s request for a religious medal and refused to give them back to
3
plaintiff. Plaintiff filed a grievance against Sergeant McLaughlin based on this incident.
4
A temporary restraining order is an extraordinary and temporary “fix” that the court may
5
issue without notice to the adverse party if, in an affidavit or verified complaint, the movant
6
“clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant
7
before the adverse party can be heard in opposition.” See Fed.R.Civ.P. 65(b)(1)(A). The purpose
8
of a temporary restraining order is to preserve the status quo pending a fuller hearing. See
9
generally, Fed.R.Civ.P. 65; see also, L.R. 231(a). It is the practice of this district to construe a
10
motion for temporary restraining order as a motion for preliminary injunction. Local Rule 231(a);
11
see also, e.g., Aiello v. OneWest Bank, 2010 WL 406092, *1 (E.D.Cal. 2010) (providing that
12
“„[t]emporary restraining orders are governed by the same standard applicable to preliminary
13
injunctions‟”) (citations omitted).
14
The party requesting preliminary injunctive relief must show that “he is likely to succeed
15
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
16
the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
17
Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d
18
1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief
19
hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean
20
Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
21
Alternatively, under the so-called sliding scale approach, as long as the plaintiff
22
demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the
23
public interest, a preliminary injunction may issue so long as serious questions going to the merits
24
of the case are raised and the balance of hardships tips sharply in plaintiff's favor. Alliance for
25
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–36 (9th Cir. 2011) (concluding that the “serious
26
questions” version of the sliding scale test for preliminary injunctions remains viable after
27
Winter).
28
////
2
1
The principal purpose of preliminary injunctive relief is to preserve the court‟s power to
2
render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur
3
R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to
4
demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary
5
injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports
6
Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation
7
omitted). Implicit in this required showing is that the relief awarded is only temporary and there
8
will be a full hearing on the merits of the claims raised in the injunction when the action is
9
brought to trial. In cases brought by prisoners involving conditions of confinement, any
10
preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
11
harm the court finds requires preliminary relief, and be the least intrusive means necessary to
12
correct the harm.” 18 U.S.C. § 3626(a)(2).
13
In addition, as a general rule this court is unable to issue an order against individuals who
14
are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395
15
U.S. 100 (1969).
16
Plaintiff‟s claims regarding Sergeant McLaughlin are unrelated to the claims on which
17
this action is proceeding, i.e., plaintiff‟s claims that he is not receiving treatment for
18
exhibitionism and voyeurism. Because the grounds of plaintiff‟s request for injunctive relief are
19
unrelated to the merits of the instant action, the court is unable to issue an order addressing
20
plaintiff‟s pending motion for injunctive relief.
21
22
Accordingly, IS HEREBY RECOMMENDED that plaintiff‟s motion for injunctive relief
(ECF No. 134) be denied.
23
These findings and recommendations are submitted to the United States District Judge
24
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
25
after being served with these findings and recommendations, any party may file written
26
objections with the court and serve a copy on all parties. Such a document should be captioned
27
“Objections to Magistrate Judge‟s Findings and Recommendations.” Any response to the
28
objections shall be filed and served within fourteen days after service of the objections. The
3
1
parties are advised that failure to file objections within the specified time may waive the right to
2
appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
3
Dated: May 1, 2014
4
5
Ok2659.pi
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?