Miner v. Smiley et al

Filing 47

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/02/20 RECOMMENDING that plaintiff's motion for a temporary restraining order and/or preliminary injunction 43 be denied. Motion 43 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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GREGORY MINER,

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No. 2:17-cv-1896-MCE-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

W. DAVID SMILEY, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983, moves for a temporary restraining order and/or preliminary injunction. ECF No. 43.

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Plaintiff states that he complained about not having possession of his property and now fears

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retaliation. He seeks an order prohibiting his transfer to another institution until he is in

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possession of his property. For the reasons that follow, plaintiff’s request should 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

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status 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).

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“The standards for granting a temporary restraining order and a preliminary injunction are

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identical.” Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf.
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Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

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(observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of

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a temporary 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 court’s 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). To be entitled to preliminary injunctive relief, a party must

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demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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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 the

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Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious

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questions going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can

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support issuance of an injunction, assuming the other two elements of the Winter test are also

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met.” Id. 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

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

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harm.” 18 U.S.C. § 3626(a)(2).

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Plaintiff fails to meet that standard. This action proceeds on claims against defendants

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employed at Mule Creek State Prison. Plaintiff is now housed at the California Institute for Men,

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and his current request involves neither Mule Creek State Prison nor the named defendants.

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Because plaintiff’s motion addresses conduct that is not a subject of this civil action, it does not

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demonstrate either a likelihood of success or a serious question going to the merits of his

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complaint.1 Also significant is that plaintiff fails to show that he will suffer imminent and

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irreparable harm in the absence of the requested relief. Rather, his vague fear of “retaliation” is

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speculative, and his motion fails to show how being transferred before receipt of his property will

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cause irreparable injury. He has not shown that any disruption to his ability to access his property

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would be permanent rather than temporary. Nor has he shown that procedures are not available to

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obtain what he needs if the property is temporarily unavailable.

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For these reasons, plaintiff’s motion for a temporary restraining order and/or preliminary
injunction must be denied.
Accordingly, it is hereby RECOMMENDED that plaintiff’s motion for a temporary
restraining order and/or preliminary injunction (ECF No. 43) 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: July 2, 2020.

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Generally, such unrelated allegations must be pursued through the prison administrative
process and then litigated in a separate action. See McKinney v. Carey, 311 F.3d 1198, 11991201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir.
2010) (together holding that claims must be exhausted prior to the filing of the original or
supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist.
LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011).
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