Washington v. Duncan et al

Filing 93

ORDER by Judge William Alsup denying 82 Motion for Immediate Injunctive Relief. (dt, COURT STAFF) (Filed on 11/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TRACYE B. WASHINGTON,

No. C 05-2775 WHA (PR)

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Plaintiff,

ORDER DENYING MOTION FOR
IMMEDIATE INJUNCTIVE
RELIEF

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v.
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For the Northern District of California

United States District Court

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W. A. DUNCAN; R. BOUCHER; L.
HERNANDEZ; E. MOORE; A.
GOMEZ; R. PEREZ; L. BAEZ; W.L.
MUNIZ;
(Docket No. 82)

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Defendants.
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This is a civil rights case filed pro se by a state prisoner claiming that defendants, guards

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at Salinas Valley State Prison (“SVSP”), used excessive force against him. Defendants’ motion

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for summary judgment was denied, and pro bono counsel, located by the Federal Pro Bono

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Project, has been appointed. Prior to appointment of counsel, plaintiff, who is currently at ,

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California State Prison – Sacramento (“CSP – Sacramento”), filed a motion for immediate

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injunctive relief seeking transfer to another prison. Although this matter is stayed at present,

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the allegations in the motion were sufficiently serious to order a response from defendants.

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Defendants have filed an opposition to the motion for immediate injunctive relief supported by

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affidavits of prison officials at CSP-Sacramento.

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Moreover, before

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granting a prisoner a preliminary injunction, “substantial weight to any adverse impact on

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public safety or the operation of a criminal justice system caused by the preliminary relief” must

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be given. See 18 U.S.C. § 3626(a)(2).

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Plaintiff has not shown a likelihood of his success on the merits of his claim. He claims

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that officials at his current prison are attempting to retaliate against him for the instant lawsuit

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by directing another inmate to attack him on September 19, 2011. Plaintiff has not submitted

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any evidence in support of his allegation that prison officials were responsible for the attack on

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him. Attached to his motion is his own affidavit in which he states that he learned from

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unnamed inmates that the attack was ordered by prison guards. This is, of course, inadmissible

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hearsay. Plaintiff does not include affidavits from any such inmates, or from prison officials,
with first-hand knowledge that the attack had been ordered. Defendants, on the other hand,

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For the Northern District of California

United States District Court

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have submitted affidavits from the two guards at CSP-Sacramento, Pizarro and Dobbs, whom

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plaintiff alleges knew about his present lawsuit and were responsible for securing the area

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where the attack took place. In these affidavits, Pizarro and Dobbs state that they did not direct,

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and have no knowledge of any official, directing any attacks on plaintiff by other inmates.

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They go on to describe that their findings that the altercation on September 19, 2011, grew out

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of a dispute between plaintiff and other inmates in the “Bloods” gang, as did a subsequent fight

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plaintiff was involved in on October 26, 2011. In the absence of any evidence to support

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plaintiff’s allegation that guards are retaliating against him by orchestrating fights with other

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inmates, he has not shown a likelihood of success on the claim and is not, therefore, entitled to a

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preliminary injunction. The motion (docket number 82) is Denied. The denial is without

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prejudice to plaintiff’s newly-appointed counsel filing such a motion in the future, provided

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such a motion is accompanied by the necessary evidence required to meet the standard for

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preliminary injunctive relief.

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IT IS SO ORDERED.
Dated: November

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, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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