Rushdan v. Hamkar et al

Filing 25

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/27/12 denying 21 Motion for temporary restraining order for the reasons set forth above. (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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SALADIN RUSHDAN,

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Plaintiff,

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vs.

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No. 2:12-cv-0562 MCE CKD P

HAMKAR, et al.,

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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. On May 1, 2012, the court found that, for screening

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purposes, plaintiff stated an Eighth Amendment deliberate indifference claim against five

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defendants on the CSP-Sacramento medical staff. (Dkt. No. 6 at 8.) On October 19, 2012,

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defendants filed a motion to dismiss this action. (Dkt. No. 19.)

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Before the court is plaintiff’s November 7, 2012 motion for a temporary restraining

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order, in which he asserts that, in addition to suffering from delayed medical treatment, he has

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been denied single-cell status; has been transferred twice; and his typewriter has been thrown in

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the trash. (Dkt. No. 21 at 3.) He alleges that unnamed prison officials have “retaliated and

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obstructed [his] access to the courts.” (Id. at 4.) Plaintiff’s requested relief includes timely

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medical care, access to tweezers, to be single-celled for the duration of his medical treatment, and
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for prison officials to “desist from further transfers” while this action is pending. (Id. at 6-7.)

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The purpose in issuing a temporary restraining order is to preserve the status quo

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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

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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, much of plaintiff’s motion for injunctive relief has nothing to do with the

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operative claims in this case. Rather, it concerns alleged retaliation by unnamed officials, and

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how prison transfers and double-cell status have caused hardship to plaintiff.1 Insofar as plaintiff

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Plaintiff also seeks to be provided with a double mattress, extra blankets, and a waist
chain chrono. However, none of these requests relate directly, if at all, to the allegations in the
complaint. (Dkt. No. 21 at 7.)
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does not seek medical treatment for his keloids, his request for injunctive relief is beyond the

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scope of the case or controversy before this court. See Benyamini v. Manjuano, 2011 WL

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4963108 (E.D. Cal. Oct. 18, 2011) (“This Court lacks jurisdiction to issue an order requiring

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prison officials to transfer [plaintiff] based on retaliatory acts occurring after this action was filed,

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

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Moreover, in Meachum v. Fano, 427 U.S. 215 (1976), the United States Supreme Court explicitly

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held that prisoners do not have a constitutional right to be housed at a particular prison within a

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

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inmate’s liberty interests are sufficiently extinguished by his conviction so that the state may

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change his place of confinement even though the degree of confinement may be different and

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

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Plaintiff also requests that defendants “return Plaintiff on time for medical care

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[and] follow Dr. Grekin’s orders[.]” (Dkt. No. 21 at 6.) However, plaintiff’s motion does not

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demonstrate a likelihood of success on the merits of his Eighth Amendment claims, and indeed

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does not address the actions of particular defendants. Instead, plaintiff seeks injunctive relief

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from unnamed prison and CDCR officials against whom the complaint was not found to state a

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claim. (Id. at 3.) Nor has plaintiff shown the possibility of irreparable injury or that the balance

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of hardships tips in his favor.

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Accordingly, IT IS HEREBY ORDERED THAT plaintiff’s motion for temporary
restraining order (Dkt. No. 21) is denied for the reasons set forth above.
Dated: November 27, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rush0562.tro

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