Wilson v. Fox et al.
Filing
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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)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAVID W. WILSON,
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Plaintiff,
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No. 2:15-cv-2108 MCE DB P
v.
FINDINGS AND RECOMMENDATIONS
ROBERT W. FOX, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action
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pursuant to 42 U.S.C. § 1983. No other parties have appeared in this action.
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Before the court is plaintiff’s motion for a protective order. (ECF No. 19.) Though not
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entirely clear, it appears plaintiff seeks an order directing staff members at California Medical
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Facility (“CMF”) in Vacaville, California to refrain from denying plaintiff equal access to
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programs, from failing to properly heat his cells, from opening his confidential mail, and from
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retaliating against him for filing of grievances.
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I.
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Legal Standards
The court construes plaintiff’s motion for a protective order as a motion for a temporary
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restraining order. The purpose of a temporary restraining order is to preserve the status quo before
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a preliminary injunction hearing may be held; its provisional remedial nature is designed merely
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to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v. Phoenix Software,
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Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil Procedure 65, a temporary
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restraining order may be granted only if “specific facts in an affidavit or verified complaint
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clearly show that immediate and irreparable injury, loss, or damage will result to the movant
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before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A).
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The standard for issuing a temporary restraining order is identical to the standard for a
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preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d
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832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary and drastic remedy,
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never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). A
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plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,
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that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
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equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res.
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Def. Council, 555 U.S. 7, 20 (2008).
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A preliminary injunction may issue where the plaintiff demonstrates the existence of
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serious questions going to the merits and the hardship balance tips sharply toward the plaintiff,
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assuming the other two elements of the Winter test are also met. Alliance for the Wild Rockies v.
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Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either formulation of the principles,
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preliminary injunctive relief should be denied if the probability of success on the merits is low.
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See Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (even if the
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balance of hardships tips decidedly in favor of the moving party, it must be shown as an
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irreducible minimum that there is a fair chance of success on the merits).
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In cases brought by prisoners involving conditions of confinement, any preliminary
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injunction must be narrowly drawn, extend no further than necessary to correct the harm the court
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finds requires preliminary relief, and be the least intrusive means necessary to correct the harm.
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18 U.S.C. § 3626(a)(2).
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II.
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Discussion
On June 8, 2017, the court screened plaintiff’s complaint and dismissed it with leave to
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amend for violating the joinder requirement of Federal Rule of Civil Procedure 20. A first
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amended complaint has not yet been filed. Thus, at this stage of the proceedings, there is no
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operative pleading. The court therefore cannot opine that plaintiff is likely to succeed on the
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merits of his claims.
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Furthermore, no defendants have yet appeared in this action, and the court does not have
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jurisdiction to order injunctive relief which would require directing parties not before the court to
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take action. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th
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Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the parties
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and subject matter jurisdiction over the claim; it may not attempt to determine the rights of
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persons not before the court.”).
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Finally, plaintiff seeks protection from CMF staff members. Plaintiff has since been
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transferred to R.J. Donovan Correctional Facility in San Diego, California. See ECF No. 19.
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Absent facts to suggest that plaintiff will be transferred back to CMF, any requests for injunctive
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relief as to CMF staff members appear to be moot. See Preiser v. Newkirk, 422 U.S. 395, 402-03
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(1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991); see also Andrews v. Cervantes, 493
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F.3d 1047, 1053 n.5 (9th Cir. 2007).
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III.
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Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a
protective order (ECF No. 18) be DENIED.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen
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(14) days after being served with the findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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Dated: June 9, 2017
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/DLB7;
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