Abordo v. Corrections Corporation of America Inc et al
Filing
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ORDER Denying Motion For Preliminary Injunction/Temporary Restraining Order 13 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/8/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EDMUND M. ABORDO,
)
)
Plaintiff,
)
)
vs.
)
)
CORRECTIONS CORPORATION )
OF AMERICA, et al.,
)
)
Defendants.
)
____________________________ )
Civ. No. 11-00327 JMS/BMK
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION/
TEMPORARY RESTRAINING
ORDER
ORDER DENYING MOTION FOR PRELIMINARY
INJUNCTION/TEMPORARY RESTRAINING ORDER
Before the court is Plaintiff’s Motion for Preliminary Injunction/
Temporary Restraining Order (“Motion”). Doc. No. 13. Plaintiff is a Hawaii
inmate incarcerated at the Saguaro Correctional Center (“SCC”), located in Eloy,
Arizona. Plaintiff seeks an order enjoining SCC officials from retaliating against
him for filing this action. Plaintiff’s Motion is DENIED.
I. BACKGROUND
Plaintiff filed this action in the Circuit Court of the First Circuit, State
of Hawaii, on March 15, 2011, naming the Corrections Corporation of America
(“CCA”) and SCC Warden Todd Thomas, as defendants (collectively,
“Defendants”).1 Plaintiff’s Complaint alleges that Defendants: (1) are involved in
racketeering activities in violation of Hawaii Revised Statutes § 842 et seq.
(organized crime), and 18 U.S.C. § 1961 et seq. (“RICO”); (2) discriminated
against him in violation of the Fourteenth Amendment; and (3) committed theft,
robbery, extortion, and conspiracy in violation of various state and federal laws.
Defendants timely removed the case to this court on May 23, 2011, pursuant to 28
U.S.C. § 1441(b). See Doc. No. 1.
On June 3, 2011, Plaintiff filed this Motion, seeking an order
enjoining Defendants from retaliating against him for exercising his First
Amendment rights to petition the court. See Doc. No. 13 at 2. Although somewhat
unclear, Plaintiff apparently fears Defendants will retaliate against him for filing
this action.
II. LEGAL STANDARD
The standard for issuing a temporary restraining order is identical to
the standard for issuing a preliminary injunction. See G. v. State of Haw., Dep’t of
Human Servs., 2009 WL 2877597 (D. Haw. Sept. 4, 2009); Schoenlein v. Halawa
Corr. Facility, 2008 WL 2437744 (D. Haw. June 13, 2008).
1
CCA operates SCC, providing correctional services for the Hawaii Department of
Public Safety.
2
A “preliminary injunction is an extraordinary and drastic remedy
never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
129 S. Ct. 365, 376 (2008) (citation omitted). A “plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Id., 129
S. Ct. at 374; accord Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.
2009).
“That is, ‘serious questions going to the merits’ and a balance of
hardships that tips sharply towards the plaintiff can support issuance of a
preliminary injunction, so long as the plaintiff also shows that there is a likelihood
of irreparable injury and that the injunction is in the public interest.” Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135-36 (9th Cir. 2011) (citing Clear
Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)). In cases
brought by prisoners involving conditions of confinement, any preliminary
injunction “must be narrowly drawn, extend no further than necessary to correct
the harm the court finds requires preliminary relief, and be the least intrusive
means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).
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III. DISCUSSION
Plaintiff’s ex parte request for immediate injunctive relief fails for a
simple reason -- a court may grant intermediate injunctive relief only if that relief
is similar or related to the type of relief that may ultimately be granted; relief is not
proper on matters lying wholly outside of the issues at suit. DeBeers Consol.
Mines v. United States., 325 U.S. 212, 220 (1945); Kaimowitz v. Orlando, Fla.,
122 F.3d 41, 43 (11th Cir.), amended, 131 F.3d 950 (11th Cir. 1997). That is, in
addition to showing the four Winter factors, “the movant must establish ‘a
relationship between the injury claimed in the party’s motion and the conduct
asserted in the complaint.’” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)
(quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)
(holding that an Eighth Amendment claim cannot provide a basis for preliminary
injunction against alleged acts in retaliation for filing claim); Grindling v. State,
2009 WL 3923166, at *2 (D. Haw. Nov. 18, 2009) (stating “Plaintiff must seek
injunctive relief related to the merits of the claims set forth in his complaint”).
Plaintiff seeks a restraining order to prevent Defendants from
retaliating against him for filing this suit. Plaintiff’s putative claims for retaliation
and denial of access to the court have no relation to the claims he raises in this
action. Although Plaintiff fails to present sufficient facts supporting his Motion,
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any attempt to show a likelihood of success on the merits of a retaliation or denial
of access to the court claim could not establish likelihood of success on the merits
of the claims in Plaintiff’s Complaint. See, e.g., Santos v. J.P. Morgan Chase
Bank, N.A., 2010 WL 5313740 (C.D. Cal. Dec. 17, 2010) (holding that plaintiff’s
attempts to restrain foreclosure as invalid under California law could not show a
likelihood of success on the merits of the federal complaint, which did not allege a
violation of California law).
Moreover, Plaintiff has not shown that he will suffer irreparable harm
if this Motion is not granted. Plaintiff filed this action almost three months ago,
yet he details no retaliatory action that Defendants have taken against him in
response. This Motion, based on Plaintiff’s speculative fears of retaliation, appears
to be a calculated attempt to prevent this action from being transferred to Arizona
rather than on any identifiable and imminent fear of reprisal.2 Plaintiff was clearly
able to file this action and has suffered no retaliatory acts yet. Thus, his right to
petition or access the court has not been infringed. Plaintiff is not entitled to a
temporary restraining order or preliminary injunction on these new and completely
hypothetical claims.
2
An Order to Show Cause and Defendants’ Motion to Change Venue regarding the
propriety of a change venue of this action to the U.S. District Court for the District of Arizona is
currently pending before the court. See Doc. Nos. 7 & 8.
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Finally, Plaintiff has accumulated three strikes pursuant to 28 U.S.C.
§ 1915(g).3 In the Motion, Plaintiff refers to his most recent action in Arizona,
Abordo v. Corr. Corp. of America, Civ. No. 07-2134-PHX (D. Ariz. 2008), but
does not explain that the action and a similar motion for injunctive relief in it were
dismissed pursuant to § 1915(g). See id., Doc. No. 9. By filing this Motion alleging
new and separate claims against Arizona defendants, rather than filing an action in
Arizona, it appears that Plaintiff is trying to circumvent the three strikes bar to which
he is subject. Plaintiff’s Motion for Preliminary Injunction/Temporary Restraining
Order is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 8, 2011.
/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Abordo v. Corr. Corp. of Am., Civ. No. 11-00327 JMS/BMK; Order Denying Motion for Preliminary
Injunction/Temporary Restraining Order; psas\TROs\ Abordo 11-327 JMS
3
See Abordo v. Beaver, Civ. No. 97-01099 (D. Haw. 1997); Abordo v. Beaver, Civ. No.
00-00002 (D. Haw. 2000); Abordo v. Dep’t of Public Safety, Civ. No. 06-00423 (D. Haw. 2006)
(warning that final dismissal of the action would constitute a third strike for purposes of 28
U.S.C. § 1915(g)); and Abordo v. Corr. Corp. of Am., Civ. No. 07-2134-PHX (D. Ariz. 2008)
(applying § 1915(g) when dismissing case).
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