White v. Smyers et al

Filing 53

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/28/2014 ORDERING that 45 the Findings and Recommendations issued on 6/17/2014 are hereby VACATED; IT IS FURTHER RECOMMENDED 39 that plaintiff's motion for immediate injunctive relief be denied for the reasons discussed herein; Referred to Judge Morrison C. England, Jr.; Objections due within 21 days after being served with these F & R's.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER HOWARD WHITE,

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Plaintiff,

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No. 2:12-cv-02868 MCE AC P

v.

ORDER AND AMENDED FINDINGS &
RECOMMENDATIONS

D. SMYERS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s

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motion for a temporary restraining order filed on June 2, 2014. ECF No. 39.

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I.

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Factual and Procedural History
In his first amended complaint, plaintiff alleged that various medical staff at High Desert

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State Prison (“HDSP”) were deliberately indifferent to his serious medical needs while he was

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housed there between September 22, 2010 and March 27, 2013. ECF No. 23 at 2. Plaintiff

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required ongoing medical treatment for a spinal condition, a Baker’s cyst on his right knee, as

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well as an additional surgery to repair a total knee replacement that had previously been done

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without success. ECF No. 23 at 3-4.

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In his motion for a temporary restraining order, plaintiff requests an order to force High
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Desert State Prison officials to schedule the total knee revision surgery called for by the last

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orthopedic surgeon within 15 days of his transfer back to that facility. ECF No. 39 at 4. Based

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on his allegations of prior medical mistreatment at HDSP, plaintiff further requests that the court

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order HDSP officials to afford him with proper post-operative care for his knee and that they not

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take away his wheelchair. Id. Absent such an order, plaintiff contends that he will suffer

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irreparable harm. Id. All of plaintiff’s requests are based on “the demonstrated probability” that

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CDCR officials are planning on returning plaintiff to HDSP to finish out the last 36 months of his

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prison sentence. ECF No. 39 at 2.

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On June 17, 2014, the undersigned issued Findings and Recommendations on plaintiff’s

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motion for a temporary restraining order based on the exhibits that were attached to his motion.

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ECF No. 45. The court recommended denying the motion based on the speculative nature of

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plaintiff’s transfer back to HDSP. See ECF No. 45 at 5. On July 14, 2014 plaintiff filed

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objections to these Findings and Recommendations along with evidence presented for the first

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time indicating that a Classification Staff Representative or “CSR” endorsed plaintiff for transfer

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back to HDSP. ECF No. 51 at 17. This new evidence is dated May 15, 2014, prior to the filing

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of plaintiff’s motion for a temporary restraining order. Id. Although plaintiff claims that this new

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evidence was not available until July 3, 2014, he provides no documentation supporting this

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claim. While the court does not countenance such piecemeal presentation of relevant evidence

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pertaining to an emergency motion, the court will vacate its Findings and Recommendations

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issued on June 17, 2014 and address plaintiff’s motion anew.1

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II.

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Legal Standard
The legal principles applicable to requests for injunctive relief, such as a temporary

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restraining order or preliminary injunction, are well established. To prevail, the moving party

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must show either a likelihood of success on the merits of the underlying controversy and the

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

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The court notes that plaintiff has abandoned his request for injunctive relief concerning nonparties. ECF No. 51 at 14. Therefore, the court will not address this portion of plaintiff’s motion
for a temporary restraining order.
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tips sharply in the movant's favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692,

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700 (9th Cir.1997); Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762 F.2d 1374, 1376 (9th

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Cir.1985). The two formulations represent two points on a sliding scale with the focal point

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

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formulation of the test, however, the moving party must demonstrate that there exists a significant

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threat of irreparable injury. See id. In the absence of a significant showing of possible

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irreparable harm, the court need not reach the issue of likelihood of success on the merits. See id.

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The loss of money, or an injury whose measure of damages can be calculated in terms of money,

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will not be considered irreparable. See id. at 1334–35.

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The standard for a temporary restraining order is essentially the same. The purpose in

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issuing a temporary restraining order is to preserve the status quo pending a more complete

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hearing. The cases contain limited discussion of the standards for issuing a temporary restraining

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order due to the fact that very few such orders can be appealed prior to a full hearing. It is

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apparent however, that requests for temporary restraining orders are governed by the same

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

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

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

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Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y.1990). In many cases the emphasis

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of the court is directed to irreparable harm and the balance of hardships because the merits of a

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controversy are often difficult to ascertain and adjudicate on short notice.2

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The Eastern District of California Local Rules impose additional requirements for a motion for a
temporary restraining order. First, the court will consider whether the moving party could have
sought relief by a noticed motion for a preliminary injunction at an earlier date without the
necessity of seeking last-minute relief by motion for a temporary restraining order. See Local
Rule 231(b). Second, the moving party must provide specific documents to the court in support
of the requested temporary restraining order. See Local Rule 231(c). Finally, in cases brought by
prisoners involving conditions of confinement, any temporary restraining order or preliminary
injunction must be narrowly drawn, extend no further than necessary to correct the harm the court
finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.
See 18 U.S.C. § 3626(a)(2).
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III.

Analysis

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The undersigned first notes that the relief plaintiff is requesting is extensive and would

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require a very intrusive order concerning the provision of medical care at specific times and by

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specific providers. In addition, although the claims plaintiff raises in his motion are similar to

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those raised in the complaint, he has not met the standard of showing irreparable harm. Plaintiff’s

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assertions that he will be denied adequate medical care in the same way and to the same extent

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that he alleges occurred while housed at HDSP from 2010 until 2013 are entirely speculative.

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Speculative injury does not constitute irreparable harm. See Caribbean Marine Servs. Co. v.

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Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d

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466, 472 (9th Cir. 1984). Because plaintiff alleges only a speculative injury, the undersigned will

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not recommend issuing the requested intrusive restraining order and does not reach the issue of

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likelihood of success on the merits.

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To the extent that plaintiff may be seeking a temporary restraining order to prevent his

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transfer back to HDSP, a prisoner has no due process right to remain in or be transferred to a

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prison of his choosing. See Meachum v. Fano, 427 U.S. 215, 224-27 (1976). In this vein,

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plaintiff is requesting relief this court cannot grant.

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Accordingly, IT IS ORDERED that the Findings and Recommendations issued on June
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IT IS FURTHER RECOMMENDED that plaintiff's motion for immediate injunctive
relief (ECF No. 39) be denied for the reasons discussed herein.

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

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

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one days after being served with these amended findings and recommendations, any party may

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

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captioned “Objections to Magistrate Judge’s Amended Findings and Recommendations.” Any

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response to the objections shall be served and filed within fourteen days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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DATED: July 28, 2014

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