Childs v. State of California et al

Filing 104

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/17/2017 RECOMMENDING plaintiff's 101 motion for a temporary restraining order and/or a preliminary injunction be denied. Referred to Judge Troy L. Nunley; Objections to F&R 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

E. CHILDS,

12
13
14
15

No. 2:13-cv-0670-TLN-EFB P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,
Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

18

§ 1983, moves for a temporary restraining order and/or preliminary injunction. He claims that his

19

life is in imminent danger because officials at Richard J. Donovan Correctional Facility may

20

transfer him to Salinas Valley State Prison, where he has unspecified safety concerns. He

21

requests an order requiring that his safety concerns be investigated before he is transferred. For

22

the reasons that follow, the request should be denied.

23

A temporary restraining order may be issued upon a showing “that immediate and

24

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

25

in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the

26

status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no

27

longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S. Ct.

28

1113, 39 L. Ed. 2d 435 (1974). “The standards for granting a temporary restraining order and a
1

1

preliminary injunction are identical.” Haw. County Green Party v. Clinton, 980 F. Supp. 1160,

2

1164 (D. Haw. 1997); cf. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7

3

(9th Cir. 2001) (observing that an analysis of a preliminary injunction is “substantially identical”

4

to an analysis of a temporary restraining order).

5

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

6

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

7

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

8

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

9

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

10

326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must

11

demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

12

in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

13

injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

14

2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d

15

249 (2008)). The Ninth Circuit has also held that the “sliding scale” approach it applies to

16

preliminary injunctions—that is, balancing the elements of the preliminary injunction test, so that

17

a stronger showing of one element may offset a weaker showing of another—survives Winter and

18

continues to be valid. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir.

19

2010). “In other words, ‘serious questions going to the merits,’ and a hardship balance that tips

20

sharply toward the plaintiff can support issuance of an injunction, assuming the other two

21

elements of the Winter test are also met.” Id. In cases brought by prisoners involving conditions

22

of confinement, any preliminary injunction “must be narrowly drawn, extend no further than

23

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

24

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

25

Plaintiff fails to meet that standard. Plaintiff alleges in his complaint that defendants at

26

the California Medical Facility left him handcuffed in his cell for 24 hours because of his

27

participation in a hunger strike, and that he was subsequently denied medical care despite his

28

“obvious” need for medical attention. See ECF Nos. 16, 19. His motion for injunctive relief does
2

1

not involve the California Medical Facility, the defendants in this action, or his Eighth

2

Amendment claims. Because his motion addresses conduct that is not a subject of this civil

3

action, it does not demonstrate either a likelihood of success or a serious question going to the

4

merits of his complaint. Generally, such unrelated allegations must be pursued through the prison

5

administrative process and then litigated in a separate action. See McKinney v. Carey, 311 F.3d

6

1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07

7

(9th Cir. 2010) (together holding that claims must be exhausted prior to the filing of the original

8

or supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist.

9

LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011). In addition, plaintiff fails to show that he will

10

suffer irreparable harm in the absence of the requested relief. Although plaintiff claims that his

11

life will be in “imminent danger” if he is transferred to Salinas Valley State Prison, he provides

12

no evidence to substantiate or further clarify these speculative and conclusory allegations. For

13

these reasons, plaintiff’s motion for a temporary restraining order and/or preliminary injunction

14

must be denied.

15
16

Accordingly, it is hereby RECOMMENDED that plaintiff’s motion for a temporary
restraining order and/or preliminary injunction (ECF No. 101) be denied.

17

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

18

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

19

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

20

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

21

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

22

objections shall be served and filed within fourteen days after service of the objections. The

23

parties are advised that failure to file objections within the specified time may waive the right to

24

appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

25

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

26

DATED: January 17, 2017.

27
28
3