Murschel v. Paramo et al

Filing 9

ORDER denying 3 Motion for Restraining Order and Preliminary Injunction without prejudice. Signed by Judge Barry Ted Moskowitz on July 3, 2017. (All non-registered users served via U.S. Mail Service)(dsn)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

LANCE MURSCHEL,
CDCR #P-04895,

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER

Plaintiff,

13
14

Case No.: 3:17-cv-1142-BTM-AGS

vs.

15
16
17

DANIEL PARAMO, et al.,
Defendants.

18
19
20
21
22
23

Lance Murschel (“Plaintiff”), a prisoner incarcerated the Richard J. Donovan

24

Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se,

25

has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No.

26

1.) Plaintiff has also filed Motion for a Temporary Restraining Order (“TRO”) and

27

Preliminary Injunction (ECF No. 3).

28
1
3:17-cv-1142-BTM-AGS

The Court has granted Plaintiff in forma pauperis (“IFP”) status but has not yet

1
2

conducted the required sua sponte screening of Plaintiff’s Complaint pursuant to 28

3

U.S.C. § 1915(e)(2) & § 1915A. While the Court has not made the determination

4

whether Plaintiff has stated claims against the named Defendants that survive the sua

5

sponte screening process, the Court ordered Defendants to respond to Plaintiff’s Motion

6

for a TRO or Preliminary Injunction. On June 23, 2017, Defendant Paramo filed a

7

response to Plaintiff’s Motion through counsel specially appearing on his behalf. (ECF

8

No. 8.)

9

I.

Motion for Restraining Order
Plaintiff has filed a “Motion for a Temporary Restraining Order and Preliminary

10
11

Injunction” pursuant to FED. R. CIV. P. 65. (ECF No. 3.) Plaintiff seeks an order “to

12

ensure that he is not transferred out of Richard J. Donovan Correctional Facility.” (Id. at

13

1.) Plaintiff claims that Defendants are retaliating against him for filing this lawsuit by

14

“recommending that the Plaintiff be transferred out of [RJD] to another institution [in]

15

Northern California.” (Id. at 3-4.) Plaintiff further claims that this transfer will

16

“significantly put his life on danger or risk of serious harm or injury.” (Id. at 4.)
“The standard for issuing a temporary restraining order is identical to the standard

17
18

for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes

19

Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales

20

Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

21

(standards for issuing a TRO are “substantially identical” to those for issuing a

22

preliminary injunction). A plaintiff seeking a preliminary injunction must establish: (1) a

23

likelihood of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable

24

harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor;

25

and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council,

26

555 U.S. 7, 20 (2008).

27

///

28

///
2
3:17-cv-1142-BTM-AGS

As stated above, Defendant Paramo has filed a response in opposition to Plaintiff’s

1
2

request. (ECF No. 8.) In support of the opposition, Defendant Paramo has supplied the

3

declaration of J. Homer, along with the declaration of C. Weathersbee. (ECF Nos. 8-1, 8-

4

2.)
Plaintiff claims he was told by “Correctional Counselor John Doe” in April of

5
6

2017 that he “will appear to the Institution Classification Committee” who will

7

“recommend that Plaintiff be transferred out of [RJD] E.P.P. level of care SNY yard to

8

Northern California State Prison Level II or III which houses inmates in dorms.” (Pl.’s

9

Mot. at 6.) Plaintiff objects to this “transfer recommendation on the basis of health

10

issues, family ties and safety concerns.” (Id.) Plaintiff maintains that this transfer will

11

“seriously threaten Plaintiff’s life, health and safety and that it will be against his will.”

12

(Id.)

13

Defendant argues that Plaintiff is simply not entitled to relief because “he is not

14

scheduled to be transferred from RJD.” (Def.’s Opp’n, ECF No. 8, at 2.) (emphasis in

15

original.) In support of this statement, Homer’s declaration, signed under penalty of

16

perjury, indicates that Homer is a Correctional Counselor II and he is “familiar with the

17

policies and procedures of CDCR and RJD regarding the assignments of an inmate’s

18

housing classification status, and an inmate’s transfers between CDCR institutions.”

19

(Homer Decl. at ¶ 2.) As a Correctional Counselor, Homer has access to “each inmate’s

20

records at RJD regarding their current classification status and any pending transfers to

21

other CDCR institutions.” (Id.)

22

Homer’s review of Plaintiff’s file indicates that he is “not currently recommended

23

or scheduled to be transferred from RJD.” (Id. at ¶ 3(a)). On February 27, 2017, a

24

“special committee” did recommend that Plaintiff be “transferred to a lower-level facility

25

than RJD, which is a high-security Level IV facility.” (Id. at ¶ 3(b)). The committee

26

then recommended a transfer to Mule Creek State Prison (“MCSP”) which is a lower

27

level security institution. (Id.) However, on March 16, 2017, a “Correctional Counselor

28

III” did not “adopt the Committee’s recommendation” in part because there was “no bed
3
3:17-cv-1142-BTM-AGS

1

space available” at a lower level institution. (Id. at ¶ 3(c)). Therefore a “CDCR Form

2

128-G” was issued which “endors[ed] inmate Murschel to be retained at RJD.” (Id.; Ex.

3

2, Auditor Action dated Mar. 16, 2017.) It is further noted that Plaintiff is currently

4

housed in RJD’s “Enhanced Out Patient (“EOP”) Special Needs Yard (“SNY”).” (Id. at

5

¶ 3(d)). Weathersbee, Litigation Coordinator for MCSP, declares that MSCP “has had

6

“Enhanced Out Patient/Special Needs Yards for Level II and Level III inmates” for at

7

least the past six months. (Weathersbee Decl. at ¶ 2.)

8

In order to meet the “irreparable harm” requirement, Plaintiff must do more than

9

simply allege imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc.

10

v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires Plaintiff to demonstrate by

11

specific facts that he faces a credible threat of immediate and irreparable harm, unless an

12

injunction issues. FED. R. CIV. P. 65(b). “Speculative injury does not constitute

13

irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean

14

Marine, 844 F.2d at 674-75.

15

Here, the Court finds that Plaintiff has failed to establish the imminent irreparable

16

harm required to support a preliminary injunction. See Winter, 555 U.S. at 20; Alliance

17

for the Wild Rockies, 632 F.3d at 1131. Plaintiff must establish that the threat of future

18

injury is both “real and immediate,” not just “conjectural” or “hypothetical.” City of Los

19

Angeles v. Lyons, 461 U.S. 95, 102 (1983). The only basis for his request is what

20

Plaintiff was allegedly told by a “John Doe” correctional counselor regarding a

21

“recommendation” that will be made by unidentified individuals on a committee at some

22

future point in time. Plaintiff does not know which prison is being recommended and

23

assumes he will be housed in a dorm setting. Plaintiff provides no documentation in

24

support of any of his claims. Defendant Paramo has set forth verified declarations, along

25

with documentation, that demonstrate that Plaintiff is not currently scheduled to be

26

transferred. Moreover, even when a transfer was considered, it did not go forward

27

because the institution recommended did not have the facilities available to accommodate

28

Plaintiff’s various housing and medical needs.
4
3:17-cv-1142-BTM-AGS

1

Finally, Plaintiff does not have a constitutional right to be housed in the institution

2

of his choice. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); McKune v. Lile, 536

3

U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the

4

core of prison administrators’ expertise.”)
For all these reasons, Plaintiff’s Motion for TRO and Preliminary Injunction (ECF

5
6

No. 3) is DENIED.

7

II.

Conclusion and Order

8

Good cause appearing, the Court:

9

DENIES Plaintiff’s Motion for Restraining Order and Preliminary Injunction

10
11

(ECF No. 3) without prejudice.
IT IS SO ORDERED.

12
13
14
15

Dated: July 3, 2017
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court

16
17
18
19
20
21
22
23
24
25
26
27
28
5
3:17-cv-1142-BTM-AGS