(PC) Miner v. Rudas ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY MINER, No. 2:17-cv-1896-MCE-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 W. DAVID SMILEY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with this civil rights action under 42 U.S.C. 18 § 1983, moves for a temporary restraining order and/or preliminary injunction. ECF No. 43. 19 Plaintiff states that he complained about not having possession of his property and now fears 20 retaliation. He seeks an order prohibiting his transfer to another institution until he is in 21 possession of his property. For the reasons that follow, plaintiff’s request should be denied. 22 A temporary restraining order may be issued upon a showing “that immediate and 23 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 24 in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the 25 status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no 26 longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). 27 “The standards for granting a temporary restraining order and a preliminary injunction are 28 identical.” Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. 1 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) 2 (observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of 3 a temporary restraining order). 4 A preliminary injunction will not issue unless necessary to prevent threatened injury that 5 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 6 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 7 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 8 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 9 326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must 10 demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 11 in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 12 injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 13 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has 14 also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing 15 the elements of the preliminary injunction test, so that a stronger showing of one element may 16 offset a weaker showing of another—survives Winter and continues to be valid. Alliance for the 17 Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious 18 questions going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can 19 support issuance of an injunction, assuming the other two elements of the Winter test are also 20 met.” Id. In cases brought by prisoners involving conditions of confinement, any preliminary 21 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 22 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 23 harm.” 18 U.S.C. § 3626(a)(2). 24 Plaintiff fails to meet that standard. This action proceeds on claims against defendants 25 employed at Mule Creek State Prison. Plaintiff is now housed at the California Institute for Men, 26 and his current request involves neither Mule Creek State Prison nor the named defendants. 27 ///// 28 ///// 4.4tf VV VLOSGY LT lL MYVVULEICEIL rei PHUMUu ViiVveray Payee v viv 1 | Because plaintiffs motion addresses conduct that is not a subject of this civil action, it does not 2 || demonstrate either a likelihood of success or a serious question going to the merits of his 3 | complaint.! Also significant is that plaintiff fails to show that he will suffer imminent and 4 | irreparable harm in the absence of the requested relief. Rather, his vague fear of “retaliation” is 5 || speculative, and his motion fails to show how being transferred before receipt of his property will 6 || cause irreparable injury. He has not shown that any disruption to his ability to access his property 7 || would be permanent rather than temporary. Nor has he shown that procedures are not available to 8 || obtain what he needs if the property is temporarily unavailable. 9 For these reasons, plaintiff’s motion for a temporary restraining order and/or preliminary 10 || injunction must be denied. 11 Accordingly, it is hereby RECOMMENDED that plaintiffs motion for a temporary 12 | restraining order and/or preliminary injunction (ECF No. 43) be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 || after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 || DATED: July 2, 2020. 21 Eg Vuln 4 Z is LH At 22 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 25 ' Generally, such unrelated allegations must be pursued through the prison administrative 26 || Process and then litigated in a separate action. See McKinney v. Carey, 311 F.3d 1198, 1199- 1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 27 || 2010) (together holding that claims must be exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. 28 | LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011).