Giraldes v. Oania, et al.
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/19/2015 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that plaintiff's 20 motion for injunctive relief be denied. Assigned and referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LARRY GIRALDES,
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No. 2:14-cv-726-EFB P
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
OANIA, et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se in action brought under 42 U.S.C.
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§ 1983, has filed a motion for a temporary restraining order. He seeks to prohibit the defendants
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from limiting his phone privileges in an alleged effort to obstruct plaintiff’s prosecution of this
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case. ECF No. 20. As discussed below, the motion must be denied.
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A temporary restraining order may be issued upon a showing “that immediate and
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irreparable injury, loss, or damage will result to the movant before the adverse party can be heard
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in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status
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quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no
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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). “The
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standards for granting a temporary restraining order and a preliminary injunction are identical.”
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Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int’l
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Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an
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analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary
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restraining order).
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A preliminary injunction will not issue unless necessary to prevent threatened injury that
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would impair the courts 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
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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,
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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party
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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable
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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
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injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has
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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing
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the elements of the preliminary injunction test, so that a stronger showing of one element may
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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild
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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions
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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support
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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.
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In cases brought by prisoners involving conditions of confinement, any preliminary injunction
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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds
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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18
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U.S.C. § 3626(a)(2).
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Plaintiff proceeds in this action on a claim that defendants Oania and Casas retaliated
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against him by denying him phone privileges. However, plaintiff does not establish that he is
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likely to succeed on this claim and a preliminary injunction requiring all seven defendants in this
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action to provide plaintiff with phone access must be denied. Plaintiff’s motion is not
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accompanied by a sworn declaration or any other evidence establishing a likelihood of success in
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this action, or that the injunction sought is necessary to preserve the court’s ability to grant
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effective relief on his claims and that it is the least intrusive means for doing so. Plaintiff does
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not demonstrate that he is entitled to phone privileges. Further, he makes only general allegations
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that the restriction on his phone privileges is “obstruct[ing] this case,” and does not demonstrate
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that he will suffer irreparable harm without the court’s intervention. Plaintiff also fails to present
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evidence establishing that the balance of equities tips in his favor. Nor is there a showing that the
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requested injunctive relief is in the public interest. Thus, plaintiff has not made the showing
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required to meet his burden as the party moving for injunctive relief, and his request must be
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denied.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
Further, IT IS HEREBY RECOMMENDED that plaintiff’s motions for injunctive relief
(ECF No. 20) be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 19, 2015.
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