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)

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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

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