Davis v. Seihel et al

Filing 41

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/12/2019 RECOMMENDING plaintiff's 40 motion for preliminary injunction be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEROME MARKIEL DAVIS,

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No. 2:18-cv-1261-TLN-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

KIMBERLY SEIHEL, 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. He claims that at

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some unspecified time in the future, he will be transferred to another institution, and that he will

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not be safe if he is housed in the general population. He claims to have been labelled a “snitch”

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and that both correctional officers and prison gang members wish to harm him. He requests an

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order requiring that upon any transfer, he be placed in a protective housing unit. For the reasons

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that follow, the 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. “The
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standards for granting a temporary restraining order and a preliminary injunction are identical.”

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Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int’l

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Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an

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analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary

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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). In order to be entitled to preliminary injunctive relief, a party

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

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harm 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 an Eighth Amendment failure

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to protect/deliberate indifference to safety claim against a defendant Harrison, who is employed at

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Deuel Vocation Institute (DVI). Plaintiff is now housed at Kern Valley State Prison, and his

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current request involves neither DVI nor Harrison. Because plaintiff’s motion addresses conduct

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that is not a subject of this civil action, it does not demonstrate either a likelihood of success or a

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serious question going to the merits of his complaint. Generally, such unrelated allegations must

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be pursued through the prison administrative process and then litigated in a separate action. See

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McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v.

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Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be

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exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV

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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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Also significant, however, is that plaintiff fails to show that he will suffer irreparable or

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imminent harm in the absence of the requested relief. First, there is no indication that plaintiff

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will be transferred to another institution any time soon. Second, even if plaintiff were transferred,

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there is no indication that his safety needs would go unguarded. He is currently housed in the

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administrative segregation unit at Kern Valley State Prison to keep him safe. ECF No. 40 at 2.

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There is simply no indication that those safety concerns would be disregarded upon any transfer

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or that he would be thoughtlessly placed in the general population if it posed a risk to his safety.

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For these reasons, plaintiff’s motion for a temporary restraining order and/or preliminary

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injunction must be denied.

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Accordingly, it is hereby RECOMMENDED that plaintiff’s motion for a temporary
restraining order and/or preliminary injunction (ECF No. 40) 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: December 12, 2019.

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