Mester v. Malakkla et al

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 9/14/2017 VACATING 6 Order and Findings and Recommendations regarding plaintiff's preliminary injunction and order that District Judge be assigned to this case and DENYING without prejudice 5 Motion for Preliminary Injunction. Clerk to update docket to reflect this case is assigned to Magistrate Judge Allison Claire. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MORRIS MESTER,

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No. 2:17-cv-1781 MCE AC P

Plaintiff,
v.

ORDER

N. MALAKKLA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. In conjunction with his complaint, plaintiff filed a motion for

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preliminary injunction which sought an order directing defendants to “provide relief of his pain

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[and] suffering” and to follow the course of treatment laid out by orthopedic surgeon John Casey.

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ECF No. 5 at 3. On August 30, 2017, the court recommended that plaintiff’s motion for

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preliminary injunction be denied without prejudice. ECF No. 6 at 2-3. Plaintiff filed objections

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to that recommendation. ECF No. 11. Prior to filing those objections, however, he consented to

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the magistrate judge jurisdiction. ECF No. 10. Given that no defendant has yet been served, the

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court finds it appropriate to vacate its findings and recommendations issued on August 30 (ECF

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No. 6) and to adjudicate the preliminary injunction by order. See Wilhelm v. Rotman, 680 F.3d

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1113, 1119-21 (9th Cir. 2012) (holding that magistrate judge had jurisdiction to dismiss a

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prisoner’s § 1983 action after prisoner consented to magistrate judge jurisdiction and no
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defendant had yet been served). The court will also vacate its order directing the Clerk of Court

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to assign a district judge to this case. After reviewing plaintiff’s objections and for the reasons

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stated below, the court will deny plaintiff’s preliminary injunction without prejudice.

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I.

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“A preliminary injunction is an ‘extraordinary and drastic remedy’ . . . it is never awarded

Legal Standards

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as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citing 11A C. Wright, A. Miller, &

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M. Kane, Federal Practice and Procedure § 2948, p. 129 (2d ed.1995) and Yakus v. United States,

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321 U.S. 414, 440 (1944)). “The sole purpose of a preliminary injunction is to “preserve the

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status quo ante litem pending a determination of the action on the merits.” Sierra Forest Legacy

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v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citing L.A. Memorial Coliseum Comm’n v. NFL,

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634 F.2d 1197, 1200 (9th Cir.1980)).

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In evaluating the merits of a motion for preliminary injunctive relief, the court considers

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whether the movant has shown 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.” Winter v. Natural Resources Defense

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Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

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(quoting Winter). The propriety of a request for injunctive relief hinges on a significant threat of

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irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844

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F.2d 668, 674 (9th Cir. 1988). A preliminary injunction is appropriate when a plaintiff

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demonstrates . . . “serious questions going to the merits and a hardship balance that tips sharply

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toward the plaintiff, . . . assuming the other two elements of the Winter test are also met.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). An injunction

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against individuals who are not parties to the action is strongly disfavored. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100 (1969).

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Additionally, in cases brought by prisoners involving conditions of their confinement, any

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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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

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correct the harm.” 18 U.S.C. § 3626(a)(2).
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II.

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The court concludes that plaintiff’s motion for preliminary injunction should be denied.

Analysis

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Notice to the adverse party (or parties) is required before a motion for preliminary injunction may

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be granted. See Fed. R. Civ. P. 65(a)(1); see also Granny Goose Foods, Inc. v. Teamsters Local

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No. 70, 415 U.S. 423, 434 n.7 (1974). (“The notice required by Rule 65(a) before a preliminary

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injunction can issue implies a hearing in which the defendant is given a fair opportunity to oppose

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the application and to prepare for such opposition.”). As noted in its previous order (ECF No. 6),

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service is not yet appropriate for any defendant in this case. Thus, plaintiff’s motion for

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preliminary injunction is premature. Rather than allow the motion to sit pending until service is

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accomplished, the court will dismiss the motion without prejudice to renewal at a later date.
While a preliminary injunction pursuant to Rule 65(a) requires notice, a temporary

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restraining order may be granted without notice to the adverse party or its counsel where: (1)

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specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable

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injury, loss, or damage will result to the movant before the adverse party can be heard in

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opposition; and (2) the movant’s certifies in writing any efforts made to give notice and the

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reasons why it should not be required. See Fed. R. Civ. P. 65(b). Although plaintiff has

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explicitly categorized his pending motion as one for preliminary injunction under Rule 65(a)

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(ECF No. 5 at 1), in light of his pro se status the court will also consider the propriety of a

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temporary restraining order. The Winter factors identified above apply with equal measure to the

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issuance of a temporary restraining order. See Gonzalez v. Wells Fargo Bank, No. 5:12-cv-

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03842, 2012 U.S. Dist. LEXIS 118355, 2012 WL 3627820, at *1 (N.D. Cal. Aug. 21, 2012)

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(“The standard for issuing a TRO is the same as that for the issuance of preliminary injunction.”).

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The court concludes that issuance of a temporary restraining order is also inappropriate at

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this time. First, plaintiff has failed to establish that he will suffer irreparable harm if immediate

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injunctive relief does not issue. Although he has alleged various shortcomings in his medical

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care, there is no medical evidence before the court which indicates that the failure to immediately

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implement Dr. Casey’s treatment plan will irreparably damage plaintiff’s health. The medical

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records attached to plaintiff’s objections, while describing the rationale for right and left “total hip
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arthroplasty” (ECF No. 11 at 11-12), do not evince any medical urgency or describe the

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consequences of failing to quickly undertake the recommended procedures. Next, defendants

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have not yet been served or required to respond to plaintiff’s allegations and, consequently, the

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court is unable to determine whether plaintiff is likely to succeed on the merits of his claims.

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Finally, the court finds that neither the balance of equities nor the public interest weigh in favor of

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granting injunctive relief at this early stage. Courts should intrude into prison administration only

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as far as necessary to protect inmates’ constitutional rights. See Bruce v. Ylst, 351 F.3d 1283,

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1290 (9th Cir. 2003). And mandatory injunctions – injunctions which compel a party to act as

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opposed to refrain from acting – are disfavored. See Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoting Anderson v. United States, 612

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F.2d 1112, 1114 (9th Cir. 1980)). Here, plaintiff would have the court undertake a significant

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intrusion into prison administration by ordering medical staff to undertake a specific course of

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treatment. The severity of the proposed intrusion is compounded by the fact that defendants have

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not had a chance to be heard on this issue. In light of the circumstances, the court concludes that

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a temporary restraining order would be appropriate only in the face of overwhelming medical

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evidence demonstrating the immediate necessity of Casey’s proposed treatment. Plaintiff has not

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provided such evidence and his motion will be denied.

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III.

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In light of the foregoing, it is HEREBY ORDERED that:

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1.

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The findings and recommendations regarding plaintiff’s preliminary injunction

submitted on August 30, 2017 (ECF No. 6) are VACATED;

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Conclusion

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In light of plaintiff’s consent to magistrate judge jurisdiction (ECF No. 10), the

court’s order that a district judge be assigned to this case (ECF No. 6) is also VACATED;

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3.

The Clerk of Court shall update the docket to reflect that this case is assigned to

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the undersigned; and

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prejudice.

Plaintiff’s motion for preliminary injunction (ECF No. 5) is DENIED without

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IT IS SO ORDERED.

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DATED: September 14, 2017

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