Tierney v. Torikawa et al

Filing 38

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER 36 AND FOR HEARING 37 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/24/2012. (afc)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
MICHAEL C. TIERNEY,
#A0201434,
Plaintiff,
vs.
LOIS TORIKAWA, IRENE
REVILLA, SCOTT HARRINGTON,
MATT PATTIOAY,
Defendants.
____________________________

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CIV. NO. 12-00056 LEK/RLP
ORDER DENYING MOTIONS FOR
TEMPORARY RESTRAINING ORDER AND
FOR HEARING

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER AND FOR HEARING
Before the court is Plaintiff’s motions for a temporary
restraining order (“TRO”) and a hearing regarding his recent
transfer to the Saguaro Correctional Center, in Eloy, Arizona.
ECF #36, #37.

Plaintiff claims that inmate Matt Pattioay, who he

alleges assaulted him in December 2011, when they were both
incarcerated at the Waiawa Correctional Facility, was transferred
with him to Arizona.

Plaintiff claims that Pattioay harassed him

during transit to Arizona and at the facility.

Plaintiff’s

requests for a TRO and a hearing are DENIED.
I. BACKGROUND
On May 10, 2012, the court granted Plaintiff’s in forma
pauperis application, finding that he sufficiently alleged
imminent danger of serious physical injury to bypass the bar
imposed on his filings by 28 U.S.C. § 1915(g).

ECF #20.

On May 15, 2012, the court dismissed Plaintiff’s
Complaint in part and directed him to complete and send the
necessary service documents to the United States Marshal so that
service could be perfected on Defendants Torikawa, Revilla, and
Harrington.

ECF #21.

were dismissed.

Claims against Defendant Matt Pattioay

To date, service has not been effected on any

Defendant.
On June 27, 2012, Plaintiff was transferred to Arizona.
II.

DISCUSSION

The “circumstances justifying the issuance of an ex
parte order are extremely limited” because “our entire
jurisprudence runs counter to the notion of court action taken
before reasonable notice and an opportunity to be heard has been
granted both sides of a dispute.”

Reno Air Racing Ass’n v.

McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (finding that a TRO
was improperly issued because notice to the adverse party was
neither impossible nor would it render the action fruitless
(citing Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423
(1974)).

Federal Rule of Civil Procedure 65 outlines the

“stringent restrictions imposed” for TROs issued ex parte.
The court may issue a temporary restraining order
without written or oral notice to the adverse party or its
attorney only if:
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable
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Id.

injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition;
and
(B) the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it
should not be required.
Fed. R. Civ. P. 65(b)(1) (emphasis added).
Plaintiff meets neither requirement.

Plaintiff’s only

statement providing specific facts in support of his request for
a TRO are those in his Motion itself.

Plaintiff’s Motion does

not provide specific facts that clearly show that “immediate and
irreparable injury, loss, or damage” will result before
Defendants Torikawa, Revilla, and Harrington can be heard in
opposition.

Id.

Plaintiff also fails to certify in writing the efforts
he made to give notice to Defendants or reasons why notice should
not be required before a TRO is issued.

Plaintiff fails to

demonstrate that notice is impossible or fruitless, as required
for an ex parte TRO.

Reno Air Racing, 452 F.3d at 1131.

Plaintiff also fails to comply with Rule 65(b)(2),
which provides that, “[e]very temporary restraining order issued
without notice must . . . describe the injury and state why it is
irreparable [and] state why the order was issued without notice.”
Fed. R. Civ. P. 65(b)(2).

Plaintiff does not explain the

irreparable injury he has or will suffer due to Pattioay’s
alleged harassment, or otherwise explain why he seeks a TRO

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without notice to Defendants Torikawa, Revilla, and Harrington.
Moreover, Plaintiff’s request for injunctive relief as
directed to Defendants Torikawa, Revilla, and Harrington is moot,
because he has been transferred to Arizona from the Waiawa
Correctional Facility, where Defendants are employed.

See 11 C.

Wright & A. Miller, Federal Practice and Procedure, § 2848 (1973)
(explaining that a presently existing actual threat must be shown
for such relief to be granted, although the injury need not be
certain to occur).

Constitutional standing to sue requires three

elements: (1) an injury in fact, (2) that is fairly traceable to
the defendant, and (3) that is likely to be redressed by a
favorable decision.

See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992).

An inmate’s transfer to another prison while

his claims are pending generally moots claims seeking injunctive
or declaratory relief regarding prison policies.

See Preiser v.

Newkirk, 422 U.S. 395 (1975) (inmate’s request for declaratory
judgment rendered moot by inmate’s transfer to another prison);
Dilley v. Gunn, 64 F.3d 1365, 1368–69 (9th Cir. 1995) (inmate’s
request for injunctive relief rendered moot by inmate’s transfer
to another prison); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.
1991) (per curiam) (same); Darring v. Kincheloe, 783 F.2d 874,
876 (9th Cir. 1986) (same).

There is no indication that

Plaintiff will be transferred back to WCF.

See Wiggins v.

Rushen, 760 F.2d 1009 (9th Cir. 1985) (chance that prisoner might

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be returned to prison where injury occurred is too speculative to
demonstrate reasonable expectation that injury may recur).
Plaintiff may, of course, bring suit in Arizona and seek
injunctive relief from Arizona prison officials.
Finally, Plaintiff’s claims that Pattioay “harassed”
him present no “serious question” that he is in danger of
irreparable harm from Pattioay, or that the balance of hardships
tips sharply in his favor, or that the balance of equities tips
in his favor, or that an injunction is in the public interest.1
See Winter, 129 S. Ct. at 374; accord Sierra Forest Legacy, 577
F.3d at 1021.

Plaintiff’s request for a TRO is DENIED.

Plaintiff has no right to remain in prison in Hawaii.
See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983) (interstate
prison transfer does not implicate Due Process clause).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 24, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Torikawa, et al., Civ. No. 1:12-00056 LEK-RLP, ORDER DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER AND HEARING; psas/tros/2012/Tierney 12-56 (no svc TRO, no imm dng irrep harm)

1

The Hawaii Statewide Automated Victim Information and
Notification Service (SAVIN), does not show that Pattioay is
incarcerated any longer in Hawaii or Arizona. See
https://www.vinelink.com.
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