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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY O‟KEEFE,

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No. 2:11-cv-2659 KJM KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JERRY BROWN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff‟s motion for a temporary restraining

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order. (ECF No. 134.) For the following reasons, the undersigned recommends that this motion

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be denied.

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This action is proceeding on plaintiff‟s fourth amended complaint. (ECF No. 114.) On

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January 29, 2014, the undersigned issued an order screening the fourth amended complaint. (ECF

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No. 115.) The court ordered service of defendant Belavich, Swift, Vasquez, Grawal, Ferguson

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and Salkowaltz as to plaintiff‟s individual claim that he is not receiving treatment for voyeurism

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and exhibitionism at California State Prison-Corcoran (“Corcoran”). (Id.)

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In the pending motion for injunctive relief, plaintiff seeks an order prohibiting Sergeant

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McLaughlin from retaliating against plaintiff for the filing of an administrative appeal against him

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on April 17, 2014. Plaintiff alleges that Father Vanissery approved plaintiff‟s request to
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order/possess a religious medal. Plaintiff alleges that Sergeant McLaughlin intercepted the

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documents approving plaintiff‟s request for a religious medal and refused to give them back to

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plaintiff. Plaintiff filed a grievance against Sergeant McLaughlin based on this incident.

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A temporary restraining order is an extraordinary and temporary “fix” that the court may

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issue without notice to the adverse party if, in an affidavit or verified complaint, the movant

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“clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant

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before the adverse party can be heard in opposition.” See Fed.R.Civ.P. 65(b)(1)(A). The purpose

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of a temporary restraining order is to preserve the status quo pending a fuller hearing. See

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generally, Fed.R.Civ.P. 65; see also, L.R. 231(a). It is the practice of this district to construe a

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motion for temporary restraining order as a motion for preliminary injunction. Local Rule 231(a);

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see also, e.g., Aiello v. OneWest Bank, 2010 WL 406092, *1 (E.D.Cal. 2010) (providing that

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“„[t]emporary restraining orders are governed by the same standard applicable to preliminary

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injunctions‟”) (citations omitted).

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The party requesting preliminary injunctive relief must show that “he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d

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1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief

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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean

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Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).

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Alternatively, under the so-called sliding scale approach, as long as the plaintiff

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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the

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public interest, a preliminary injunction may issue so long as serious questions going to the merits

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of the case are raised and the balance of hardships tips sharply in plaintiff's favor. Alliance for

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–36 (9th Cir. 2011) (concluding that the “serious

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questions” version of the sliding scale test for preliminary injunctions remains viable after

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Winter).

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The principal purpose of preliminary injunctive relief is to preserve the court‟s power to

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render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to

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demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary

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injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports

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Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation

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omitted). Implicit in this required showing is that the relief awarded is only temporary and there

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will be a full hearing on the merits of the claims raised in the injunction when the action is

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brought to trial. In cases brought by prisoners involving conditions of confinement, any

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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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In addition, as a general rule this court is unable to issue an order against individuals who

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are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100 (1969).

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Plaintiff‟s claims regarding Sergeant McLaughlin are unrelated to the claims on which

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this action is proceeding, i.e., plaintiff‟s claims that he is not receiving treatment for

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exhibitionism and voyeurism. Because the grounds of plaintiff‟s request for injunctive relief are

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unrelated to the merits of the instant action, the court is unable to issue an order addressing

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plaintiff‟s pending motion for injunctive relief.

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Accordingly, IS HEREBY RECOMMENDED that plaintiff‟s motion for injunctive relief
(ECF No. 134) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 1, 2014

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Ok2659.pi

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