(PC) Lamon v. Pfeiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LOUIS LAMON, ) Case No.: 1:20-cv-00896-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER BE 14 C. PFEIFFER, et.al., ) DENIED ) 15 Defendants. ) [ECF No. 3] ) 16 ) ) 17 ) ) 18 Plaintiff Barry Louis Lamon is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for a temporary restraining order, filed on June 21 29, 2020. 22 I. 23 LEGAL STANDARDS 24 Procedurally, a federal district court may issue emergency injunctive relief only if it has 25 personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy 26 Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a 27 party officially, and is required to take action in that capacity, only upon service of summons or other 28 1 authority-asserting measure stating the time within which the party serve must appear to defend.). 2 Furthermore, the pendency of this action does not give the Court jurisdiction over prison officials in 3 general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 599 4 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to the 5 viable legal claims upon which this action is proceeding. Summers, 555 U.S. at 491−93; Mayfield, 6 599 F.3d at 969. 7 A temporary restraining order is an extraordinary measure of relief that a federal court may 8 impose without notice to the adverse party if, in an affidavit or verified complaint, the moving party 9 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 10 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The standard for 11 issuing a temporary restraining order is essentially the same as that for issuing a preliminary 12 injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) 13 (analysis for temporary restraining orders and preliminary injunctions is “substantially identical”). 14 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 15 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 16 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 17 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 18 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction may 19 only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 20 “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to 21 obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th 22 Cir. 2011). 23 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison 24 Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, 25 extends no further than necessary to correct the violation of the Federal right, and is the least intrusive 26 means necessary to correct the violation of the Federal right.” Section 3626(a)(2) also places 27 significant limits upon a court’s power to grant preliminary injunctive relief to inmates. “Section 28 3626(a) therefore operates simultaneously to restrict the equity jurisdiction of federal courts and to 1 protect the bargaining power of prison administrators – no longer may courts grant or approve relief 2 that binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of 3 the State of California, 220 F.3d 987, 999 (9th Cir. 2000). 4 II. 5 DISCUSSION 6 In his motion, Plaintiff seeks a temporary restraining order for Defendants to properly identify 7 and list all known enemies and to stop retaliating against him for filing inmate grievances/complaints. 8 Plaintiff contends that in 2016 he was housed with an incompatible inmate. 9 First, at this juncture of the case, the Court cannot determine that Plaintiff is likely to succeed 10 on the merits of the Case. Second, the United States Marshal has yet to effect service on any 11 Defendant, and Defendants have no actual notice. Therefore, the Court has no personal jurisdiction 12 over any Defendant at this time. Fed. R. Civ. P. 65(d)(2); Murphy Bros., Inc. v. Michetti Pipe 13 Stringing, Inc., 526 U.S. 344, 350 (1999); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727-28 (9th Cir. 1983). 14 Third, even if the Court had personal jurisdiction over the individuals named in the complaint, 15 Plaintiff has failed to demonstrate imminent irreparable harm necessary to support a preliminary 16 injunction. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 17 (9th Cir. 2011). “The fact that plaintiff has met the pleading requirements allowing him to proceed 18 with the complaint does not, ipso facto, entitle him to a preliminary injunction.” Claiborne v. Blauser, 19 No. CIV S-10-2427 LKK, 2011 WL 3875892, at *8 (E.D. Cal. Aug. 31, 2011), report and 20 recommended adopted, No. CIV S-10-2427 LKK, 2011 WL 4765000 (E.D. Cal. Sept. 29, 2011). 21 Instead, to meet the “irreparable harm” requirement, Plaintiff must do more than simply allege 22 imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 23 668, 674 (9th Cir. 1988). Mere “[s]peculative injury does not constitute irreparable injury sufficient to 24 warrant granting a preliminary injunction.” Id. at 674-75. 25 Plaintiff does not have a constitutional right to be housed or transferred to the institution of his 26 choosing, see Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983), and his allegations of potential 27 future harm and risk of injury at Kern Valley State Prison based on past threats and revelations are 28 merely speculative. See Caribbean Marine, 844 F.2d at 674-75. Further, while Plaintiff does allege to 1 have been attacked by an enemy inmate in 2016, and fears another potential attack, he fails to 2 establish that he currently faces the type of immediate and credible threat of irreparable harm 3 necessary to justify extraordinary injunctive relief at this stage of the case. City of Los Angeles v. 4 Lyons, 461 U.S. 95, 102(1983); Goldie’s Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 5 466, 472 (9th Cir. 1984) (“Speculative injury does not constitute irreparable injury.”); Rigsby v. State, 6 No. CV 11-1696-PHX-DGC, 2013 WL 1283778, at *5 (D. Ariz. Mar. 28, 2013) (denying prisoner’s 7 TRO based on fear of potential future injury based on past assaults); Chappell v. Stankorb, No. 1:11- 8 CV-01425-LJO, 2012 WL 1413889, at *2 (E.D. Cal. Apr. 23, 2012) (denying injunctive relief where 9 prisoner’s claims of injury based on current or future housing decisions were nothing “more than 10 speculative.”), report and recommendation adopted, No. 1:11-CV-01425-LJO, 2012 WL 2839816 11 (E.D. Cal. July 9, 2012). A presently existing actual threat must be shown, even though injury need 12 not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 13 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean Marine, 844 F.2d at 674. 14 Plaintiff’s vague allegations do not support a finding of irreparable future harm. Accordingly, 15 Plaintiff’s request for a temporary restraining order should be denied. 16 III. 17 RECOMMENDATION 18 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion for a 19 temporary restraining order (ECF No. 3), be DENIED. 20 This Findings and Recommendation will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 22 days after being served with these Findings and Recommendation, Plaintiff may file written objections 23 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 24 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 25 /// 26 /// 27 /// 28 /// wOAOe YVONNE SAAD MVC, tO ee OY VY VI 1 || result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson 2 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Ci 3 |} 1991)). 4 5 || IT IS SO ORDERED. ot fe 6 Dated: _ July 20, 2020 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28