Tia v. Suzuki et al

Filing 6

ORDER DENYING TEMPORARY RESTRAINING ORDER re: 4 Motion for TRO. Signed by JUDGE LESLIE E. KOBAYASHI on 4/9/2013. (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
) CIVIL NO. 13-00157 LEK/KSC
)
Plaintiff,
)
) ORDER DENYING TEMPORARY
vs.
) RESTRAINING ORDER
)
DEPUTY ATTORNEY GENERAL
)
SUZUKI, et al.,
)
)
)
Defendants.
______________________________ )
PETER R. TIA, #A1013142,

ORDER DENYING TEMPORARY RESTRAINING ORDER
Before the court is pro se Plaintiff Peter R. Tia’s
motion for temporary restraining order and preliminary
injunction.

Mot. for Temporary Restraining Order, ECF No 4.

Plaintiff is incarcerated at the Halawa Correctional Facility
(“HCF”) and seeks an injunctive order requiring Defendants to
provide him an enhanced calorie menu that will support his
perceived “ideal” weight of 215 pounds.
The court elects to decide this matter without a
hearing pursuant to LR7.2(d) and LR99.16.2(a) of the Local Rules
for the District of Hawaii and Rule 78(b) of the Federal Rules of
Civil Procedure.

Plaintiff does not show that he will likely

succeed on the merits of this action, will suffer irreparable
harm without issuance of an injunctive order, the balance of
equities tips in his favor, or that issuing a restraining order
here is in the public interest.

Plaintiff’s Motion is DENIED.

I.

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).
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, 24 (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. at 20; 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, injunctive relief
2

“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).
II.

DISCUSSION

Plaintiff states that he is at least 5’11” tall,
although his HCF medical records may show that he is 6’, and
that, as of March 2013, he weighs 156 pounds.

Plaintiff alleges

that the National Institutes of Health (“NIH”) weight and body
mass index (“BMI”) standards show that a male his height should
weigh at least 179 pounds and that his ideal weight is 215
pounds.

Plaintiff alleges that Defendant Dr. Steven DeWitt

misrepresented these NIH weight and BMI standards to this Court
at a hearing on February 13, 2012, in Civ. No. 11-00459 LEK.1
Plaintiff seeks an order requiring the Hawaii Department of
Public Safety to provide him an enhanced calorie diet until he is
at or about 179 pounds.
The court agrees that an ongoing practice of failing to
provide inmates with adequate food can undoubtedly cause serious
physical injury.

Plaintiff, however, is mistaken regarding the

1

At that hearing, the court received extensive evidence
regarding Plaintiff’s diet and weight and thereafter denied
Plaintiff’s motion for a temporary restraining order requiring
the Department of Public Safety to provide him with an enhanced
calorie diet. See Civ. No. 11-00459 LEK, ECF No. 42. The case
was later dismissed for Plaintiff’s failure to exhaust his
administrative remedies. Id., ECF No. 156.
3

NIH standards, and that Dr. DeWitt misrepresented those
standards.
First, the current NIH weight standards for a person
who is 5’11”, is between 133 and 178.5 pounds, representing a BMI
of 18.5-24.9.2

The Court’s online review of other weight and BMI

calculators track these standards.3

Plaintiff’s current weight,

156 pounds, is considered ideal under the NIH standards, whether
he is 5’11” (BMI 21.8) or 6’ (BMI 21.2).

If Plaintiff weighed

179 pounds, or his “goal” weight of 215 pounds, he would be
considered overweight or obese under the NIH’s and other
weight/BMI standards.

Id.

Second, Dr. DeWitt’s declaration in Civ. No. 11-00459
LEK did not misrepresent the NIH standards, as Plaintiff claims,
or perpetrate a fraud on the court, as Plaintiff alleges.

See

Civ. No. 11-00459 LEK, DeWitt Decl., ECF No. 41-1 PageID #192
(stating that, in DeWitt’s medical opinion, Plaintiff’s weight at
that time was “perfectly reasonable,” and well within the ideal
range of 133 to 179 pounds).

Dr. DeWitt’s opinion at the

February 13, 2012 hearing reflected this written opinion.
Plaintiff does not show injury or adverse effects based
on the NIH weight and BMI standards as applied to his weight of

2

See http://www.nhlbi.nih.gov/guidelines/obesity/bmi_tbl.

3

See e.g., Centers for Disease Control bmi calculator at:
http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_
bmi_calculator/bmi_calculator.html.
4

156 pounds.

He cannot show (1) “serious questions going to the

merits,” (2) a likelihood of irreparable injury, (3) that an
injunction requiring an enhanced calorie diet is in the public
interest, or (4) that the balance of equities tips in his favor.
Plaintiff is not entitled to a temporary restraining order
injunctive relief.
1135-36.

See Alliance for Wild Rockies, 632 F.3d at

Plaintiff’s Motion for a Temporary Restraining Order is

DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 9, 2013.

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

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