Ashley v. Singh

Filing 11

ORDER denying 10 Motion for TRO signed by Magistrate Judge Allison Claire on 07/25/13. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY ASHLEY,

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No. 2:13-cv-1126 TLN AC P

Petitioner,
v.

ORDER

SINGH,
Respondent.

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Petitioner, a state prisoner, seeks relief under 28 U.S.C. § 2254. On June 12, 2013,

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respondent was ordered to file a response to the petition for writ of habeas corpus filed on June 5,

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2013. Petitioner’s July 23, 2013 motion for temporary restraining order is before the court.

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Petitioner seeks an order preventing the California Department of Corrections (“CDCR”)

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from transferring him “in violation of F.R.A.P. Rule 23(a)….” ECF No. 10 at 1. Petitioner

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believes he is being transferred in retaliation for having filed a complaint against CDCR staff and

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asserts that a transfer will separate him from his legal property and the inmate assistance he has

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been receiving at his current facility. Id. at 2.

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

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a fuller hearing. See generally Fed. R. Civ. P. 65; see also E.D. Cal. Local Rule 231(a). The

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standards governing the issuance of temporary restraining orders are “substantially identical” to

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those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John

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D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). In general, a plaintiff in a civil
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case seeking a TRO “must establish that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Am. Trucking Ass’n, Inc. v. City of Los

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Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 20 (2008)). A TRO is “an extraordinary remedy that may only be awarded upon a

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clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

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As a threshold matter, convicted prisoners have no reasonable expectation that they will

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remain in any particular facility, and prison officials have broad authority to transfer prisoners

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from one facility to another. See Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes,

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427 U.S. 236 (1976). “[A] prisoner’s liberty interests are sufficiently extinguished by his

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conviction that the state may generally confine or transfer him to any of its institutions, indeed,

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even to a prison in another state, without offending the Constitution.” Bravo v. Hewchuck, 2006

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WL 3618023, *1 (N.D.Cal.2006) (citations omitted). The United States Supreme Court has

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stated:

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Just as an inmate has no justifiable expectation that he will be
incarcerated in any particular prison within a State, he has no
justifiable expectation that he will be incarcerated in any particular
State. Often, confinement in the inmate’s home State will not be
possible. A person convicted of a federal crime in a State without a
federal correctional facility usually will serve his sentence in
another State. Overcrowding and the need to separate particular
prisoners may necessitate interstate transfers. For any number of
reasons, a State may lack prison facilities capable of providing
appropriate correctional programs for all offenders.

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Olim v. Wakinekona, 461 U.S. 238, 245–246 (1983) (holding that an interstate prison transfer

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does not, standing alone, implicate the Due Process Clause).

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In support of his motion, petitioner cites Fed. R. App. P. 23(a), which provides, in relevant
part:
Pending review of a decision in a habeas corpus proceeding
commenced before a court, justice, or judge of the United States for
the release of a prisoner, the person having custody of the prisoner
must not transfer custody to another unless a transfer is directed in
accordance with this rule.
Fed. R. App. P. 23(a).
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Here, there has been no decision for the release of petitioner. Accordingly, the cited rule
is inapplicable.

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Further, petitioner’s motion for temporary restraining order essentially presents a

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challenge to the conditions of his confinement, which may not be addressed in this habeas corpus

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action. When a prisoner challenges the fact or duration of his custody and a determination of his

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action may result in entitlement to an earlier release, the sole available federal remedy is a writ of

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habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th

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Cir. 1990). The proper mechanism for raising a federal challenge to conditions of confinement,

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however, is through a civil rights action pursuant to 42 U.S.C. § 1983. Badea v. Cox, 931 F.2d

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573, 574 (9th Cir. 1991).

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Finally, even if petitioner’s allegations were properly presented here, they would still fail

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to demonstrate that a temporary restraining order would be warranted. His contentions of future

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injury are, at this time, no more than theoretical. Petitioner also has not shown likelihood of

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success on the merits, that the balance of equities tips in his favor, or that an injunction is in the

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public interest.

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For the foregoing reasons, IT IS HEREBY ORDERED THAT petitioner’s motion for a

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temporary restraining order (ECF No. 10) is denied.

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DATED: July 25, 2013

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___________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:ls//ashl1126.47

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