Harris v. Hawkins et al

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/15/2013 DENYING plaintiff's 20 motion for TRO and order to show cause regarding preliminary injunction. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILTON DEXTER HARRIS,

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Plaintiff,

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No. 2:12-cv-3067-JFM (PC)

v.

ORDER

HAWKINS, 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 under 42 U.S.C. § 1983.1

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On September 18, 2013, plaintiff filed a motion styled as a “request for temporary

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restraining order and order to show cause re preliminary injunction.” ECF No. 20. The court has

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only recently issued a screening order in which it found service on defendant Paul Osterlie, Jr.

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was appropriate.2 ECF No. 21. The court is awaiting of plaintiff’s submission of the summons,

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copy of the complaint and the forms required by the U.S. Marshal to effect service. See id.

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/////

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This proceeding was referred to the assigned magistrate judge by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See 28 U.S.C.
§ 636(c).

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The court also found plaintiff failed to state a cognizable claim against named defendant Kim
Yarbrough. Id. Therefore, defendant Osterlie is the only named defendant in this action.

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In his motion, plaintiff seeks an “order [that] the Defendants Paul Osterlie Jr., et al . . .

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schedule the Plaintiff for a medical appointment with the S.C.I.F. Medical [Providers] to evaluate,

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diagnose and surgically cure or relieve and alleviate[] the Plaintiff of the on-going industrial

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lower back area injury the Plaintiff sustained on 1/12/2009, . . .” ECF No. 20 at 4.

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The purpose of a temporary restraining order is to preserve the status quo pending a fuller

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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 the hearing on a

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preliminary injunction. However, that requests for temporary restraining orders are governed by

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

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

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

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

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many cases the emphasis of the court is directed to irreparable harm and the balance of hardships

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because the merits of a controversy are often difficult to ascertain and adjudicate on short notice.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir.1989). A preliminary injunction represents the exercise of a far reaching power

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not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326

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F.2d 141, 143 (9th Cir.1964). The moving party must demonstrate “that he is likely to succeed on

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

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

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Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council,

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Inc., --- U.S. ----, 129 S.Ct. 365, 374 (2008)). The Ninth Circuit has also held that “sliding scale”

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approach it applies for the showing that must be made regarding the chance of success on the

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merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, __ F.3d

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__, 2010 WL 2926463, *3-4 (filed July 28, 2010). Under this sliding scale the elements of the

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preliminary injunction test are balanced. As it relates to the merits analysis, a stronger showing
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of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the

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merits. Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary

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

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

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harm.” 18 U.S.C. § 3626(a)(2).

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Here, plaintiff's motion includes allegations against individuals who are not named

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defendants in this action and he fails to establish some prospect for success on any claims

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involving those individuals. Therefore, plaintiff’s motion with regard to these parties is denied.

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With regard to defendant Osterlie, there are no allegations in plaintiff’s second amended

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complaint that suggest he can provide the relief plaintiff requests. The alleged job-related injury

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plaintiff sustained occurred in 2009 while working under the supervision of defendant Osterlie at

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Mule Creek State Prison. Plaintiff is now housed at Correctional Training Facility – Soledad.

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Nothing before the court indicates that defendant Osterlie is currently responsible for providing

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plaintiff medical treatment – either generally or the specific treatment plaintiff seeks through this

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motion. Because plaintiff has not made a showing that the sole named defendant can provide the

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relief sought, the motion will be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s September 18, 2013, motion for

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temporary restraining order and order to show cause regarding preliminary injunction (ECF No.

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20) is denied.

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DATED: October 15, 2013.

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