Walker v. Hubert et al

Filing 22

ORDER Denying Plaintiff's 17 21 Motion for Temporary Restraining Order and/or for Preliminary Injunction without prejudice. Signed by Judge Barry Ted Moskowitz on 3/16/2015. (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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JEFF E. WALKER,
CDCR #F-11343,

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Case
No.
Plaintiff,

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vs.
C/O D. HUBERT. et al.,

14cv0788 BTM (KSC)

ORDER DENYING PLAINTIFF”S
MOTION FOR TEMPORARY
RESTRAINING ORDER AND/OR
FOR PRELIMINARY
INJUNCTION
(ECF Nos. 17, 21)

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Defendants.

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Currently before the Court is Plaintiff’s Motion for Temporary Restraining Order

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and Motion for Preliminary Injunction. (ECF Nos. 17, 21.) Plaintiff has also filed a

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letter with the Court in which he seeks a status on his “request for certificate of appeal

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(COA)” regarding the Court’s initial denial of his Motion to Proceed In Forma Pauperis

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(“IFP) pursuant to 28 U.S. C. § 1915(g). (ECF No. 19.) A review of the Court’s docket

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does not indicate that Plaintiff ever filed a COA nor did he file a separate notice of

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appeal to the Ninth Circuit Court of Appeals. Regardless, neither is necessary in this

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matter as the Court granted Plaintiff’s Motion for Reconsideration and is permitting him

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to proceed IFP in this matter. (ECF No. 14.)
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14cv0788 BTM (KSC)

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I.

Motion for Temporary Restraining Order and Preliminary Injunction

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Here, Plaintiff has filed a Motion for Temporary Restraining Order and a Motion

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for Preliminary Injunction. (ECF Nos. 17, 21.) Plaintiff appears to be seeking two

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different forms of relief from this Court: (1) an injunction preventing his return to the

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Richard J. Donovan Correctional Facility (“RJD”); and (2) a dismissal of all pending

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disciplinary charges against him.

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The purpose of a preliminary injunction is to preserve the status quo if the balance

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of equities so heavily favors the moving party that justice requires the court to intervene

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to secure the positions until the merits of the action are ultimately determined.

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University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

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preliminary injunction must establish that he is likely to succeed on the merits, that he

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is likely to suffer irreparable harm in the absence of preliminary relief, that the balance

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

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Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374 (2008)

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(citation omitted)(citations omitted).

“A plaintiff seeking a

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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

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combination of probable success on the merits and the possibility of irreparable injury”

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or that “serious questions are raised and the balance of hardships tips sharply in his

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favor.” Ranchers Cattleman Action Legal Fund United Stockgrowers of Am. v. United

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States Dept. of Ag., 415 F.3d 1078, 1092 (9th Cir. 2005) (citing Save Our Sonoran, Inc.

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v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005)).

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Request for Injunctive Relief - RJD

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In Plaintiff’s Motion for Preliminary Injunction/Temporary Restraining Order,

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Plaintiff seeks an order from this Court preventing his purported transfer from his current

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place of incarceration to RJD. Plaintiff claims he is being “return to [RJD] March 5,

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2015.” (Pl.’s Mtn for Prelim, Inj. (ECF No. 17) at 8.) The Court received Plaintiff’s

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motion on March 6, 2015, one day after the purported transfer. However, in Plaintiff’s
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14cv0788 BTM (KSC)

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separate Motion for Temporary Restraining Order, he states that “he is due to be put up

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for transfer back to (RJD)” but fails to provide a specific date or any documentation

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indicating when this alleged transfer will take place.

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Plaintiff is currently housed at the California Healthcare Facility located in

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Stockton, California.1 None of the named Defendants in this matter are alleged to reside

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in Stockton or have any role involving Plaintiff’s potential transfer from CHF to another

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CDCR facility. Therefore, the Court does not have personal jurisdiction over any

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individual at CHF who would be involved in any decision to transfer Plaintiff from that

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facility. See FED.R.CIV.P. 65(d)(2). Plaintiff’s Motion for Preliminary Injunction and/or

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Temporary Restraining Order regarding the purported transfer to RJD is DENIED

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without prejudice.

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2.

Request for Injunctive Relief - Rules Violation Report

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Plaintiff has also supplied the Court with a number of exhibits that indicate

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Plaintiff was charged with a Rules Violation Report (“RVR”) and charged with battery

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on a peace officer. (Pl.’s Mtn. for TRO (ECF No. 21) at 21.) In his Motion, while not

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entirely clear, it appears that Plaintiff is seeking relief from this Court to dismiss his

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pending disciplinary charges so that they will not interfere with his purported parole

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date. (Id. at 7.) Plaintiff further indicates that if Defendant Heddy “is also willing to

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have RVR recalled so as to remove D.A. [referral], so Plaintiff can go home May 2015,

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then [Plaintiff] is willing to consider not pursuing legal action on him only.” (Id. at 9.)

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Here, Plaintiff has not shown a likelihood of success on the merits regarding this

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claim. Plaintiff’s suggestion that the Court issue any sort of injunctive relief regarding

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his pending disciplinary charges is not the type of relief that can be sought in this action.

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See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (holding that a person in state

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custody may not use § 1983 to challenge “the very fact or duration of . . . confinement”

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by seeking “a determination that he is entitled to immediate release or a speedier release

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from that imprisonment.”)

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See http://inmatelocator.cdcr.ca.gov/search.aspx (last visited March 11, 2015).
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14cv0788 BTM (KSC)

Accordingly, Plaintiff’s Motion for Temporary Restraining Order is DENIED

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without prejudice.

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II.

Conclusion and Order

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Based on the foregoing, the Court hereby:

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DENIES Plaintiff’s Motion for Temporary Restraining Order and Motion for

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Preliminary Injunction (ECF Nos. 17, 21) without prejudice.

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IT IS SO ORDERED.

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DATED: March 16, 2015
BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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14cv0788 BTM (KSC)