Tunstall v. Bick et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/12/2017 RECOMMENDING plaintiff's 3 motion for a temporary restraining order be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIAM TUNSTALL, JR.,

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Plaintiff,

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No. 2:16-cv-2604-KJM-CMK-P

vs.

FINDINGS AND RECOMMENDATION

JOSEPH BICK, et. al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief (Doc. 3). It

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is unclear from his motion what relief plaintiff is requesting. The only relief requested is that the

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court grant plaintiff’s complaint. However, as set forth by separate order, the complaint filed in

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this action is insufficient to state any claim and has been dismissed with leave to amend.

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.
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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). In addition, the court

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is unable to issue an order against individuals who are not parties to a suit pending before it. See

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Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).

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In this case, plaintiff has failed to meet the requirements of Local Rule 231(c)(4).

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In his motion, plaintiff did not include an affidavit in support of the existence of an irreparable

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injury. Certainly not receiving proper medical care, which appears to be the crux of this action,

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could lead to irreparable injury. However, it also appears that the medical issues plaintiff is

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having are on-going issues which do not appear to be urgent and leading to irreparable injury.

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Without the affidavit, the undersigned is unable to properly assess the existence of such.

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As to the likelihood of success on the merits of plaintiff’s claims, the undersigned

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has found plaintiff’s complaint deficient, and has ordered him to file an amended complaint

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which sufficiently states a claim. As such, at this time there does not appear to be a high

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likelihood of success on the merits. As to the balance of hardships, plaintiff offers no reason why

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the balance would tip in his favor. Requiring specific treatment could be a significant hardship

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on the prison, especially if the specific treatment plaintiff is requesting is not medically

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necessary. Finally, the undersigned sees no public interest in requiring plaintiff be provided

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specific medical treatment in this situation, where it is unclear from the record what treatment is

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sought and whether such treatment is medically necessary.

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Accordingly, plaintiff fails to make the required showing for a temporary
restraining order at this time. His motion for such should be denied.
Based on the foregoing, the undersigned finds plaintiff fails to make the required

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showing for a temporary restraining order and recommends that his motion (Doc. 3) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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