Wilson v. Fox et al.

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 06/09/17 recommending that plaintiff's motion for a protective order 18 be denied. MOTION for PROTECTIVE ORDER 18 referred to Judge Morrison C. England Jr. Objections due within 14 days.(Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID W. WILSON,

12

Plaintiff,

13
14

No. 2:15-cv-2108 MCE DB P

v.

FINDINGS AND RECOMMENDATIONS

ROBERT W. FOX, et al.,

15

Defendants.

16
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action

17
18

pursuant to 42 U.S.C. § 1983. No other parties have appeared in this action.

19

Before the court is plaintiff’s motion for a protective order. (ECF No. 19.) Though not

20

entirely clear, it appears plaintiff seeks an order directing staff members at California Medical

21

Facility (“CMF”) in Vacaville, California to refrain from denying plaintiff equal access to

22

programs, from failing to properly heat his cells, from opening his confidential mail, and from

23

retaliating against him for filing of grievances.

24

I.

25

Legal Standards
The court construes plaintiff’s motion for a protective order as a motion for a temporary

26

restraining order. The purpose of a temporary restraining order is to preserve the status quo before

27

a preliminary injunction hearing may be held; its provisional remedial nature is designed merely

28

to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v. Phoenix Software,
1

1

Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil Procedure 65, a temporary

2

restraining order may be granted only if “specific facts in an affidavit or verified complaint

3

clearly show that immediate and irreparable injury, loss, or damage will result to the movant

4

before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A).

5

The standard for issuing a temporary restraining order is identical to the standard for a

6

preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d

7

832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary and drastic remedy,

8

never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). A

9

plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,

10

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

11

equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res.

12

Def. Council, 555 U.S. 7, 20 (2008).

13

A preliminary injunction may issue where the plaintiff demonstrates the existence of

14

serious questions going to the merits and the hardship balance tips sharply toward the plaintiff,

15

assuming the other two elements of the Winter test are also met. Alliance for the Wild Rockies v.

16

Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either formulation of the principles,

17

preliminary injunctive relief should be denied if the probability of success on the merits is low.

18

See Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (even if the

19

balance of hardships tips decidedly in favor of the moving party, it must be shown as an

20

irreducible minimum that there is a fair chance of success on the merits).

21

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

22

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

23

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

24

18 U.S.C. § 3626(a)(2).

25

II.

26

Discussion
On June 8, 2017, the court screened plaintiff’s complaint and dismissed it with leave to

27

amend for violating the joinder requirement of Federal Rule of Civil Procedure 20. A first

28

amended complaint has not yet been filed. Thus, at this stage of the proceedings, there is no
2

1

operative pleading. The court therefore cannot opine that plaintiff is likely to succeed on the

2

merits of his claims.

3

Furthermore, no defendants have yet appeared in this action, and the court does not have

4

jurisdiction to order injunctive relief which would require directing parties not before the court to

5

take action. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th

6

Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the parties

7

and subject matter jurisdiction over the claim; it may not attempt to determine the rights of

8

persons not before the court.”).

9

Finally, plaintiff seeks protection from CMF staff members. Plaintiff has since been

10

transferred to R.J. Donovan Correctional Facility in San Diego, California. See ECF No. 19.

11

Absent facts to suggest that plaintiff will be transferred back to CMF, any requests for injunctive

12

relief as to CMF staff members appear to be moot. See Preiser v. Newkirk, 422 U.S. 395, 402-03

13

(1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991); see also Andrews v. Cervantes, 493

14

F.3d 1047, 1053 n.5 (9th Cir. 2007).

15

III.

16
17

Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a

protective order (ECF No. 18) be DENIED.

18

These findings and recommendations will be submitted to the United States District Judge

19

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

20

(14) days after being served with the findings and recommendations, Plaintiff may file written

21

objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

22

Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

23

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

24

839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

25

Dated: June 9, 2017

26
27
28

/DLB7;

3

1

DB/Inbox/Substantive/wils2108.tro

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4