Jones v. Shinn et al

Filing 9

ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDERS OR OTHER INJUNCTIVE RELIEF re 7 ; 8 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/02/2014. (eps) 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
OPHERRO JONES, FED. REG.
#02902-122,

)
)
)
Plaintiff,
)
)
vs.
)
)
WARDEN SHINN, et al.,
)
)
)
Defendants.
_____________________________ )

CIV. NO. 14-00231 LEK/BMK
ORDER DENYING MOTIONS FOR
TEMPORARY RESTRAINING ORDERS OR
OTHER INJUNCTIVE RELIEF

ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDERS
OR OTHER INJUNCTIVE RELIEF
Before the court are Plaintiff’s motions requesting
immediate injunctive relief directing FDC-Honolulu officials to
install shower mats or sandpaper strips outside of the prison’s
showers and to stop opening Plaintiff’s mail from this court
outside of his presence.

See Mots., Doc. Nos. 7 and 8.

Plaintiff filed this action on May 14, 2014, and has not yet paid
the civil filing fee, submitted an in forma pauperis application,
served the complaint, or served the present motions on FDCHonolulu officials.

Plaintiff’s requests for immediate

injunctive relief are DENIED without prejudice.
I. LEGAL STANDARDS
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
temporary restraining order 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)).

Rule 65 of the Federal Rules of

Civil Procedure outlines the “stringent restrictions imposed” for
issuing ex parte injunctive relief.

Id.

A temporary restraining order will be issued 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 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).
Similarly, the court may issue a preliminary injunction
“only on notice to the adverse party.”

Fed. R. Civ. P. 65(a)(1).

The purpose of a preliminary injunction is to preserve the status
quo if the balance of equities so heavily favors the moving party
that justice requires the court to intervene to secure the
positions until the merits of the action are ultimately

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determined.
(1981).

Univ. of Texas v. Camenisch, 451 U.S. 390, 395

To be entitled to preliminary injunctive relief, whether

a temporary restraining order or a preliminary injunction, a
party must demonstrate “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.”
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
(citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7
(2008)).

The Ninth Circuit applies a “sliding scale” approach to

preliminary injunctions as to the showing a plaintiff must make
regarding his chances of success on the merits.

Alliance for

Wild Rockies v. Cottrell, 622 F.3d 1045, 1052–53 (9th Cir. 2010)
(holding this sliding scale approach continues to apply after
Winter).

Under this sliding scale analysis, the elements of the

preliminary injunction test are balanced.

As relates to the

merits analysis, a stronger showing of irreparable harm to
plaintiff might offset a lesser showing of likelihood of success
on the merits.

Id.

Under the Prison Litigation Reform Act (“PLRA”), 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

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necessary to correct the harm.”
II.

18 U.S.C. § 3626(a)(2).

DISCUSSION

In effect, Plaintiff seeks immediate relief on claims
that form part of the basis for his suit.

As noted, Plaintiff

has neither paid for commencing this action yet, nor served his
Complaint.

Plaintiff does not explain or certify in writing in

his Motions what steps he has taken to notify FDC-Honolulu
officials of the issues he raises in these Motions, provide
reasons why such notice should not be required, or demonstrate
that providing notice is impossible or fruitless.

See Reno Air

Racing, 452 F.3d at 1131.
Nor does Plaintiff plausibly allege facts showing that
he will suffer immediate and irreparable injury, loss, or damage
if the prison does not install shower mats outside all of the
showers or cease opening Plaintiff’s mail from the court outside
of his presence.

First, prison officials may open and inspect

mail from the court outside of a prisoner’s presence, because
mail from courts is not considered “legal mail.”

See Keenan v.

Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318
(9th Cir. 1998).

Plaintiff has no right to injunctive relief on

this claim.
Second, Plaintiff fails to show a likelihood of success
on the merits regarding the need to install shower mats or safety
strips in all of the prison’s showers, or that he will suffer
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irreparable harm in the absence of such preliminary relief.

In

his Complaint, Plaintiff alleged he was injured stepping from the
shower, was given immediate medical care for his injuries, and
was moved to a handicapped cell.
#12.

See Compl., Count V, PageID

Plaintiff is therefore aware of the possible dangers near

the showers, and regardless, steps have been taken to prevent
further injury to him by moving him to a cell that is equipped
for a disabled prisoner.

There is no need for injunctive relief

to preserve the status quo.

Plaintiff also fails to show that

the balance of equities tip in his favor or that an injunction is
in the public interest.

Plaintiff’s Motions for Injunctive

Relief, Doc. Nos. 7 and 8, are DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 2, 2014.

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

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