Jones v. Nichols
Filing
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ORDER Granting Defendant's 10 Motion to Dismiss Plaintiff's Complaint; Denying Plaintiff's 15 Motion for Application for Preliminary Injunction. Plaintiff has forty five (45) days from the entry of this Order to file a First Amended Complaint to correct the deficiencies of pleading identified in the Court's Order. Signed by Judge Barry Ted Moskowitz on 4/18/2013. (All non-registered users served via U.S. Mail Service)(rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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EDWARD JONES,
CDCR #K-52736
Case No.
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Plaintiff,
ORDER:
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(1) GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
COMPLAINT PURSUANT TO
FED.R.CIV .P. 12(b)(6); and
vs.
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CORRECTIONAL COUNSELOR
NICHOLS,
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(2) DENYING PLAINTIFF”S
MOTION FOR APPLICATION FOR
PRELIMINARY INJUNCTION
Defendant.
(ECF Nos. 10, 15)
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Currently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint
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pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 10.)
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Opposition to Defendant’s Motion to Dismiss (ECF No. 11) to which Defendant has filed a
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Reply (ECF No. 12.) In addition, Plaintiff has filed a “Motion for Application for Preliminary
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Injunction.” (ECF No. 15.)
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Plaintiff has filed an
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I.
Plaintiff’s Factual Allegations
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In 2010, Plaintiff was housed at Centinela State Prison (“CEN”).1 (See Compl. at 1, 3.)
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On April 2, 2010, Plaintiff was issued a Rules Violation Report (“RVR”) in which he was
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charged with “conspiracy to traffic a controlled substance into a state prison with the intent to
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distribute.” (Id. at 3.) This matter was referred to the District Attorney’s Office who chose not
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to officially charge Plaintiff. (Id.) While these disciplinary charges were pending at CEN,
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however, Plaintiff’s right to have family visits was suspended. (Id.) On September 23, 2010,
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Plaintiff was found “not guilty” of these charges at a prison disciplinary hearing. (Id.)
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Following this ruling, the Unit Classification Committee (“UCC”) reinstated Plaintiff’s
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family visit privileges. (Id. at 4.)
Plaintiff was also returned to general population from
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administrative segregation (“Ad-Seg.”) (Id.) Upon his return to general population, Plaintiff was
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assigned Defendant Nichols as his correctional counselor. (Id.) Defendant Nichols reviewed
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Plaintiff’s central file and informed him that she “would be taking him back to classification”
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to request that the UCC revoke Plaintiff’s family visit privileges. (Id.) Defendant Nichols later
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became “Acting Correctional Counselor Supervisor” and brought Plaintiff’s visitation privileges
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to the UCC. (Id.) Plaintiff alleges that with this new position, Defendant Nichols “had final say
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in Institutional Classification matters.” (Id.) Although the committee was presented with the
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same documentation as the previous classification hearing where Plaintiff’s visiting privileges
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were restored, Plaintiff claims that Defendant Nichols presented new statements to the
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classification committee. (Id. at 5-6.) Specifically, Plaintiff alleges Defendant Nichol told the
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classification committee that “Plaintiff threw a rock through the back of a vehicle window
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causing it to shatter glass on everyone in the vehicle including the minor child in the back seat
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nineteen years ago.” (Id. at 6.) Plaintiff claims that event never happened and there was no
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evidence that he had ever been arrested or charged with this crime. (Id.) Plaintiff also alleges
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that he was never arrested or charged with any crimes that would disqualify him from receiving
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family visits. (Id. at 9.)
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Plaintiff has since filed a notice of change of address indicating that he is currently housed at
the Richard J. Donovan Correctional Facility. (ECF Nos. 6, 7)
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II.
Defendant’s Motion to Dismiss
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A.
Defendant’s Arguments
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Defendant seeks dismissal of Plaintiff’s Complaint pursuant to FED.R.CIV.P. 12(b)(6) on
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the grounds that: (1) Plaintiff fails to state a Fourteenth Amendment due process claim; and (2)
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Plaintiff fails to state an Eighth Amendment claim. (See Def’s Not. of Mtn to Dismiss at 1-2.)
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B.
FED.R.CIV .P. 12(b)(6) Standard of Review
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A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’
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or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v.
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Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri
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v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s
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complaint must provide a “short and plain statement of the claim showing that [he] is entitled
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to relief.” Id. (citing FED.R.CIV.P. 8(a)(2)). “Specific facts are not necessary; the statement need
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only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it
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rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks
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omitted).
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A motion to dismiss should be granted if plaintiff fails to proffer “enough facts to state
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a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) .
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In addition, factual allegations asserted by pro se petitioners, “however inartfully
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pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines
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v. Kerner, 404 U.S. 519-20 (1972). Because “Iqbal incorporated the Twombly pleading standard
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and Twombly did not alter courts’ treatment of pro se filings, [courts] continue to construe pro
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se filings liberally when evaluating them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 &
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n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985).
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C.
Application to Plaintiff’s Complaint
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Fourteenth Amendment Due Process Claim
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Plaintiff does not seek money damages in this matter but rather he is seeking injunctive
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relief to restore his privilege of family visits. (See Compl. at 19.) Plaintiff claims that Defendant
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Nichols failed to follow the prison regulation governing the privilege of family visitation.
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The Due Process Clause of the Fourteenth Amendment prohibits states from “depriving
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any person of life, liberty, or property, without the due process of law.” U.S. CONST. AMEND.
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XIV. The procedural guarantees of due process apply only when a constitutionally-protected
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liberty or property interest is at stake. See Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) In
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order to invoke the protection of the Due Process Clause, Plaintiff must first establish the
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existence of a liberty interest. Sandin v. Conner, 515 U.S. 472 (1995). Liberty interests may
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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460,
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466–68 (1983).
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Both the Ninth Circuit and the Supreme Court have held that the Due Process clause itself
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does not guarantee a right of unfettered visitation. Dunn v. Castro, 621 F.3d 1196, 1201 (9th
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Cir. 2010). “The denial of prison access to a particular visitor is well within the terms of
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confinement ordinarily contemplated by a prison sentence, and therefore is not independently
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protected by the Due Process Clause.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S.
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454, 461 (1989) (internal citations omitted); Overton v. Bazzetta, 539 U.S. 126, 131 (2003)
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(upholding two year ban on visitation on due process grounds).
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While a liberty interest can arise from state law or prison regulations, due process
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protections are implicated only if Plaintiff alleges facts to show that Defendants: (1) restrained
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his freedom in a manner not expected from his sentence, and (2) “impose[d] atypical and
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significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin v.
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Conner, 515 U.S. at 484.
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Plaintiff does not challenge the constitutionality of the prison visitation regulation, instead
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he challenges Defendant’s interpretation of this regulation. (See Pl.’s Opp’n to Def’s Mtn at 8.)
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Defendant argues that Plaintiff is unable to state a claim as he is unable to identify an “atypical
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and significant hardship” as it relates to the “ordinary incidents of prison life” as required by
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Sandin. (Def’s Memo of Ps & As in Supp. of MTD at 8.) While the right to visitation or
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freedom of association is not “altogether terminated by incarceration” it is expected that “some
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curtailment of that freedom” will happen in the prison context. Overton, 539 U.S. at 131-32.
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The Supreme Court has found that the “withdrawal of visitation privileges for a limited time”
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is not a “dramatic departure from accepted standards for conditions of confinement.” (Id. citing
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Sandin, 515 U.S. at 485.)
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Here, it simply is not clear whether Plaintiff’s family visitation privileges have been
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permanently barred, whether he is allowed some visitation but not allowed overnight visitation
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or whether the denial of visitation is temporary. The Ninth Circuit has held that “it is well-
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settled that prisoners have no constitutional right while incarcerated to contact visits.” Gerber
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v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (en banc). To the extent that Plaintiff is seeking
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reinstatement of overnight visits, he cannot plead facts to show that the denial of this privilege
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of overnight visits would be “atypical and significant” to the “ordinary incidents of prison life.”
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Sandin, 515 U.S. at 485; see also Dunn, 621 F.3d at 1201. However, to the extent that Plaintiff
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has received a permanent ban on all family visitation, which is not clear from the Complaint,
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Plaintiff may be able to allege that a permanent ban is atypical and significant. Overton, 539
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U.S. at 137 (“If the withdrawal of all visitation privileges were permanent or for a much longer
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period, . . . the case would present different conclusions.”)
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Thus, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Fourteenth
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Amendment due process claims but will permit Plaintiff leave to file an Amended Complaint.
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2.
Eighth Amendment claims
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Defendant moves to dismiss Plaintiff’s Eighth Amendment claims. (See Def’s Memo of
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Ps & As in Supp. of MTD at 8-9.) Plaintiff’s Eighth Amendment claims are based on the same
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set of facts set forth in support of his Fourteenth Amendment claims. The Supreme Court found
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in Overton, that the prison regulation used to deny an inmate family visitation did not “create
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inhumane prison conditions, deprive inmates of basis necessities, or fail to protect their health
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or safety.” Overton, 539 U.S. at 137. Moreover, the Supreme Court held that the regulation
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governing family visitation does not involve “the infliction of pain or injury, or deliberate
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indifference to the risk that might occur.” (Id.); see also Keenan v. Hall, 83 F.3d 1083, 1092
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(9th Cir. 1996) (affirming dismissal of prisoner’s claim challenging regulation that denied him
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visits from persons other than his immediate family on Eighth Amendment grounds). Therefore,
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the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Eighth Amendment claims
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without leave to amend. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996)
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(denial of a leave to amend is not an abuse of discretion where further amendment would be
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futile).
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III.
Motion for Preliminary Injunction
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Plaintiff has filed a Motion for Preliminary Injunction seeking a court order “blocking the
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Defendant and the Department of Corrections from denying his family visits until this Court has
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adjudicated this matter.” (Pl.’s Mtn for Prelim. Inj. (ECF No. 15) at 1.)
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The purpose of a preliminary injunction is to preserve the status quo if the balance of
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equities so heavily favors the moving party that justice requires the court to intervene to secure
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the positions until the merits of the action are ultimately determined. University of Texas v.
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Camenisch, 451 U.S. 390, 395 (1981). The burden of establishing entitlement to equitable relief
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lies squarely with the Plaintiff. See, e.g., San Diego County Gun Rights Comm. v. Reno, 98 F.3d
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1121, 1126 (9th Cir. 1996) (“As the part[y] invoking federal jurisdiction, plaintiff[] bear[s] the
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burden of establishing [his] standing to sue ... [and if the] plaintiff[] seek[s] declaratory and
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injunctive relief ..., there is a further requirement that [he] show a very significant possibility of
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future harm.”).
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At this stage of the proceedings, Plaintiff’s entire action has been dismissed so his request
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is moot. Moreover, “[a] preliminary injunction is an extraordinary remedy never awarded as
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of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 376
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(2008) (citation omitted). “A plaintiff seeking a preliminary injunction must establish that he
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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
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public interest.” Id. at 374 (citations omitted). An injunction “may only be awarded upon a clear
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showing that the plaintiff is entitled to relief.” See id. at 376 (quotation omitted).
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In addition to this traditional test, the Ninth Circuit has also applied an “alternative
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standard,” whereby injunctive relief may issue when Plaintiff demonstrates “either a combination
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of probable success on the merits and the possibility of irreparable injury” or that “serious
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questions are raised and the balance of hardships tips sharply in his favor.” Ranchers Cattleman
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Action Legal Fund United Stockgrowers of Am. v. United States Dept. of Ag., 415 F.3d 1078,
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1092 (9th Cir. 2005) (citing Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.
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2005)). Here, as stated above, Plaintiff’s claims for family visitation does not have a “probable
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success on the merits.” Id. The Due Process Clause does not guarantee a right of unfettered
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visitation. Kentucky Dep’t of Corrections , 490 U.S. at 460-61.
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In addition, Plaintiff appears to raise for the first time a claim of retaliation against
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Defendant Nichols. In the event that Plaintiff is attempting to add this claim, the Court also
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finds that, as currently alleged, Plaintiff is unlikely to prevail on this claim. In his declaration,
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Plaintiff suggests Defendant Nichol retaliated against him because he was charged with a rules
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violation. (See Pl.’s Decl. (ECF No. 15) at 4.) In order to properly allege a retaliation claim,
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Plaintiff must allege facts sufficient to show that: (1) he was retaliated against for exercising his
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constitutional rights, (2) the alleged retaliatory action “does not advance legitimate penological
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goals, such as preserving institutional order and discipline,” Barnett v. Centoni, 31 F.3d 813,
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815-16 (9th Cir. 1994) (per curiam), and (3) the defendants’ actions harmed him. See Rhodes
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v. Robinson, 380 F.3d 1183, 1131 (9th Cir. 2004). It is not clear to the Court how the fact that
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Plaintiff was charged with a disciplinary violation demonstrates that he was retaliated against
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for exercising his constitutional rights. Thus, it is unlikely that Plaintiff would prevail on a
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retaliation claim against Defendant Nichols based on the allegations set forth in his Motion.
For all these reasons, Plaintiff’s Motion for Preliminary Injunction is DENIED without
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prejudice.
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IV.
Conclusion and Order
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Based on the foregoing, the Court hereby:
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(1)
GRANTS Defendant Nichol’s Motion to Dismiss pursuant to FED.R.CIV.P.
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12(b)(6) (ECF No. 10). Plaintiff has forty five (45) days from the entry of this Order to file a
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First Amended Complaint to correct the deficiencies of pleading identified in the Court’s Order.
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If Plaintiff chooses to file a First Amended Complaint it must be complete in itself without
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reference to his previous Complaint. Defendants not named and all claims not re-alleged in the
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First Amended Complaint will be deemed to have been waived.
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IT IS FURTHER ORDERED that:
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(2)
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prejudice.
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IT IS SO ORDERED.
Plaintiff’s Motion for Preliminary Injunction (ECF No. 15) is DENIED without
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DATED: April 18, 2013
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BARRY TED MOSKOWITZ, Chief Judge
United States District Court
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