Farrar et al v. Peters et al

Filing 108

OPINION AND ORDER DENYING PRELIMINARY INJUNCTION: Plaintiff's Motion for Preliminary Injunction 65 is denied. Signed on 2/22/2016 by Judge Garr M. King. (pg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

STEPHEN L. FARRAR,
Plaintiff,

Case No. 6:15-cv-00618-KI
OPINION AND ORDER DENYING
PRELIMINARY INJUNCTION

v.
COLETTE PETERS, Director, O.D.O.C.;
SUPT. J. PREMO, Asst. Supt.; M.
YODER; CAPT. D. LONG; C. COFFEY,
OSP Medical Services; S. SHELTON,
M.D., Medical Director, O.D.O.C.; J.
RUSSELL, BHS Administrator; T.
BYERLY, BHS Manager OSP; B
MILLER, BHS (PMHNP) OSP; C.
GORDON, BHS (QMHP) OSP; C.
FARRELL (QMHP) OSP; LEONARD
WILLIAMSON, Inspector General;
GARRETT LANEY, Deputy Inspector
General; E. BRYANT, Inspector 2; J.
NOFZIGER, OSP; D. PARKER, OSP; K.
ENGLE, C/O OSP; DR. GULICK, SRCI,
Defendants.

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KING, Judge:
Plaintiff, an inmate at the Oregon State Penitentiary, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Currently before the court is plaintiff’s Motion for Preliminary
Injunction (ECF No. 65).
BACKGROUND
In this complaint, plaintiff alleges five claims against the defendants as follows: claims
one and two (denial of due process); claims three and four (forced double celling and retaliation);
and claim five (inadequate medical care).
As relevant to the pending motion, plaintiff specifically alleges he has been housed in a
single cell for approximately 26 of the 29 years he has been incarcerated. Plaintiff alleges that on
or around March 3 or 4, 2014, Captain D. Long placed him in a double cell.1 Plaintiff expressed
concern on multiple occasions about how his mental and physical health would be affected by
being housed in a double cell. Plaintiff alleges during this time defendants repeatedly informed
him that his mental health diagnoses had changed, such that a single cell was no longer
necessary. He then alleges, “Plaintiff lives in fear of being double celled.” Compl. ¶ 71.
LEGAL STANDARDS
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1)
the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm
1

He alleges elsewhere that his single cell status was removed sometime in January or
February 2014. Compl. ¶ 84.

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in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and
(4) an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that
the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some
circumstances, to justify a preliminary injunction).
The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s
alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the
other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction
may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious
questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and
the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing
Cottrell).
DISCUSSION
Plaintiff moves for a preliminary injunction “restraining defendants from placing Plaintiff
with mental health disabilities into a double cell with another inmate that would subject Plaintiff
to the possibility of death or permanent disability or force Plaintiff to refuse double celling order
and be placed in punitive disciplinary segregation unit.” Pl.’s Mot. 1-2. Plaintiff concedes that
defendants have “treated Plaintiff well and kept Plaintiff in a one-bar single cell E-135 that
Plaintiff would like to remain in pending the completion of this civil action.” Pl.’s Decl. ¶ 8.
Defendants respond by simply asserting a court order is unnecessary as plaintiff “is and
has been in a single cell for quite some time.” Defs.’ Resp. 2. Plaintiff replies that the treatment
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plan that has worked for him requires placement in a single cell, and he wants a mental health
restriction to single cell status restored in his records so that defendants cannot deprive him of his
single cell.
Plaintiff has not demonstrated a likelihood of irreparable injury as he merely speculates
that he may lose his current placement in a single cell, and that he will be harmed or will harm
someone else were he placed in a double cell. These are insufficient reasons to warrant
injunctive relief. Plaintiff must show a presently existing actual threat to justify court
involvement at this stage of the proceeding. Goldie’s Bookstore, Inc. v. Superior Crt. of State of
Cal., 739 F.2d 466, 472 (9th Cir. 1984) (“Speculative injury does not constitute irreparable
injury.”). Plaintiff’s predictions about what may happen in the future are insufficient to
demonstrate an immediate threat of irreparable harm.
CONCLUSION
Based on the foregoing, plaintiff’s Motion for Preliminary Injunction [65] is denied.
IT IS SO ORDERED.
DATED this

22nd

day of February, 2016.

/s/ Garr M. King
Garr M. King
United States District Judge

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