(PC) Davis v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JARED DAVIS, Case No. 1:21-cv-00494-HBK 12 Plaintiff, FINDINGS AND RECOMENDATIONS TO DENY PLAINTIFF'S MOTION FOR A 13 v. TEMPORARY RESTRAINING ORDER1 14 K. ALLISON; R. GODWIN; O. ONYEJE, (Doc. No. 3) et al., 15 FOURTEEN-DAY OBJECTION PERIOD Defendant. 16 17 Plaintiff Jared Davis initiated this action as a state prisoner proceeding pro se by filing a 18 civil rights complaint under 42 U.S.C. § 1983 on March 24, 2021. (Doc. No. 1, “Complaint”). 19 Plaintiff concurrently moved for a for temporary restraining order seeking relief from Pleasant 20 Valley State Prison’s Covid-19 practices and policies.2 (Doc. No. 2, “Motion”). The Motion 21 included Plaintiff’s declaration in support. On May 19, 2021, the Court directed the Warden at 22 Pleasant Valley State Prison to respond to Plaintiff’s motion. (Doc. No. 8). On June 2, 2021, the 23 Warden entered a special appearance and filed a response opposing Plaintiff’s Motion, attaching 24 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District Local Rule 302 (E.D. Cal. 2019). 26 2 Although Plaintiff filed a motion for temporary restraining order, Defendant received notice and 27 responded. Thus, the instant motion is properly treated as a motion for preliminary injunction, although the standard for either is basically the same. See Infra at 4-6 (reviewing standard for temporary restraining 28 orders and preliminary injunctions). 1 supporting exhibits. (Doc. No. 8). Plaintiff filed a Reply, attaching declarations from other 2 inmates. (Doc. No. 12). The undersigned has carefully reviewed the pleadings and other 3 submissions and, as more fully set forth below, recommends that the district court deny Plaintiff’s 4 Motion. 5 I. BACKGROUND & FACTS 6 Both Plaintiff’s Complaint and the Motion allege violations of his right to be free from 7 cruel and unusual conditions of confinement. Specifically, Plaintiff alleges that the Covid-19 8 protocols at Pleasant Valley State Prison (“Pleasant Valley”) are contributing to the spread of the 9 Covid-19 virus, primarily through the denial of adequate supplies to clean the facility and by 10 housing inmates with potentially infected inmates, all under the threat of disciplinary sanctions 11 for non-compliance. (Doc. No. 1 at 3, Doc. No. 3 at 1). On July 6, 2021, Plaintiff filed a First 12 Amended Complaint maintaining an Eighth Amendment violation and adding a Fourteenth 13 Amendment violation.3 (See Doc. No. 11 at 2). 14 Specifically, Plaintiff alleges correctional officials are not re-testing Covid-19 positive 15 inmates before they are re-housing them with healthy inmates following quarantine. (Doc. No. 3 16 at 2). Plaintiff alleges he caught the virus after being housed with an inmate who was not re- 17 tested before being released from quarantine. (Id.). Plaintiff acknowledges that as of the filing of 18 the Complaint and his Amended Complaint, he has not completed the administrative grievance 19 process available to him at the correctional institution. (Doc. No. 1 at 2; Doc. No. 11 at 8). 20 The Warden opposes Plaintiff’s Motion, attaching the following exhibits in support: 21 Declaration of M. Harris, Correctional Captain at Pleasant Valley (Doc. No. 9 at 11-14), with 22 attachments consisting of an April 8, 2020 Memorandum detailing Covid-19 related cleaning 23 protocols for institutions, “Protocol: Clean and Disinfect for emerging pathogen Covid-19”; a 24 March 25, 2020 Memorandum to California Prison Industry Authority regarding disinfectants (id. 25 at 15-22); Declaration of A. Scheesley, Supervising Registered Nurse at Pleasant Valley (id. at 26 23-24); copies of advisory statements published online from the Center for Disease Control (id. at 27 3 Plaintiff also references violations of state law citing to the California Constitution, Article I, Sections 24 28 and 26, and Sections 7 and 17. (Doc. No. 11 at 2-3). 1 27-40); April 10, 2020 Memorandum from J. Clark Kelso to Secretary Ralph Diaz (id. at 41-42); 2 “Covid-19 and Seasonal Influenza: Interim Guidance for Health Care and Public Health 3 Providers” Control Strategies for Suspected and Confirmed Cases, Figure 12.1: Algorithm for 4 Release from Isolation Criteria for Patients with Covid-19 (id. at 44); and an April 17, 2020 order 5 denying prisoner-plaintiffs’ motion for a preliminary injunction issued in Plata v. Newsom by the 6 Hon. Jon S. Tigar, United States District Judge (id. at 46-64). 7 The Warden initially provided documents showing that Pleasant Valley is providing M-95 8 masks for inmates upon request, correctional staff are required to wear approved-facial coverings, 9 inmates are tested on a weekly basis for Covid-19, inmates involved with meal serving are 10 removed immediately from the job if they test positive, inmates who test positive are placed in 11 isolated housing for fourteen days, are medically monitored and must be cleared by medical 12 personnel prior to returning to their assigned housing, and that re-testing for Covid-19 prior to 13 rehousing is not required by the Center for Disease Control guidelines. (Doc. No. 9 at 1-2) 14 (emphasis added). 15 Addressing the elements necessary for a preliminary injunction or a temporary restraining 16 order, the Warden first argues Plaintiff is unlikely to succeed on the merits because Defendants 17 are not acting with deliberate indifference to his health or safety. (Doc. No. 9 at 3-6). The 18 Warden also argues that Plaintiff failed to demonstrate that he is likely to suffer irreparable harm 19 and notes Plaintiff has had the Covid-19 vaccine. (Id. at 6). Significantly, the Warden points out 20 that the issues Plaintiff raises in the instant case are duplicative of efforts in ongoing class actions, 21 citing Plata4 and Coleman.5 (Id. at 8-9). Finally, the Warden argues that Plaintiff lacks standing 22 to raise claims on behalf of other inmates, that the Court should exercise deference in favor of 23 prison officials and that issuing an injunction would not comply with the Prison Litigation 24 Reform Act. (Id. at 6-9). 25 In Reply, Plaintiff clarifies he is not pursuing this cause of action on behalf of any other 26 27 4 Plata v. Newsom, Case No. 4:01-cv-0351-JST, Doc. No. 3291 (N.D. Cal. April 17, 2020). 5 Coleman v. Newsom, ____ F.Supp.3d _____, 2020 WL 1675775 at *1 (E.D. Cal/N.D. Cal. April 4, 28 2020). 1 inmates but was merely trying to relay the severity of the conditions based on the number of 2 people impacted. (Doc. No. 12 at 10). Plaintiff concedes that since he filed the Motion, the 3 circumstances within the correctional institution “have somewhat evolved” for the better. (Id. at 4 2). Plaintiff admits that masks and other personal protective equipment are available to inmates. 5 (Id. at 3, 7, 10). Since filing the Motion, Plaintiff also recognizes that he has received the Covid- 6 19 vaccine but notes that the vaccine is not effective against new virus strains, such as the delta- 7 variant. (Id. at 3). Plaintiff summarizes that his primary concern is the lack of adequate cleaning 8 supplies available at the correctional institution. (Id. at 10). He further argues the quarantine 9 period should be 14 days, not the current 10 days. (Id. at 4). As supporting evidence, Plaintiff 10 attaches declarations from three inmates, each of whom describe contracting the Covid-19 virus 11 in December 2020 after being housed with inmates emerging from quarantine, as well as address 12 the limited availability of cleaning supplies for inmates to clean their respective cells. (Id. at 12- 13 24). 14 II. APPLICABLE LAW 15 Federal Rule of Civil Procedure 65 governs injunctions and restraining orders, and 16 requires that a motion for temporary restraining order include “specific facts in an affidavit or a 17 verified complaint [that] clearly show that immediate, and irreparable injury, loss, or damage will 18 result to the movant before the adverse party can be heard in opposition,” as well as written 19 certification from the movant’s attorney stating “any efforts made to give notice and the reasons 20 why it should not be required.” Fed. R. Civ. P. 65(b). 21 Temporary restraining orders are governed by the same standard applicable to preliminary 22 injunctions, with the exception that preliminary injunctions require notice to the adverse party. 23 See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 24 (E.D. Ca. 2001); see also Fed. R. Civ. P. 65(a). Eastern District of California Local Rule 231, 25 however, requires notice for temporary restraining orders as well, “[e]xcept in the most 26 extraordinary of circumstances,” and the court considers whether the applicant could have sought 27 relief by motion for preliminary injunction at an earlier date. Local Rule 231(a)-(b) (E.D. Cal. 28 2019). A temporary restraining order “should be restricted to serving [its] underlying purpose of 1 preserving the status quo and preventing irreparable harm just so long as is necessary to hold a 2 hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers 3 Local No. 70, 415 U.S. 423, 439 (1974). 4 A temporary restraining order is “an extraordinary remedy” and may be issued only if 5 Plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in 6 the absence of preliminary relief; (3) that the balance of equities tips in his/her favor; (4) that an 7 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 8 Plaintiff bears the burden of clearly satisfying all four prongs. Alliance for the Wild Rockies v. 9 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). A TRO will not issue if Plaintiff merely shows 10 irreparable harm is possible – a showing of likelihood is required. Id. at 1131. 11 The injunctive relief an applicant requests must relate to the claims brought in the 12 complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 13 2015) (“When a Plaintiff seeks injunctive relief based on claims not pled in the complaint, the 14 court does not have the authority to issue an injunction.”). Absent a nexus between the injury 15 claimed in the motion and the underlying complaint, the court lacks the authority to grant Plaintiff 16 any relief. Id. at 636. 17 The Prison Litigation Reform Act (“PLRA”) imposes additional requirements on prisoner 18 litigants seeking preliminary injunctive relief against prison officials. In such cases, 19 “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to 20 correct the harm the court finds requires preliminary relief, and be the least intrusive means 21 necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); Villery v. California Dep't of Corr., 22 2016 WL 70326, at *3 (E.D. Cal. Jan. 6, 2016). As the Ninth Circuit has observed, the PLRA 23 places significant limits upon a court’s power to grant preliminary injunctive relief to inmates, 24 and “operates simultaneously to restrict the equity jurisdiction of federal courts and to protect the 25 bargaining power of prison administrators—no longer may courts grant or approve relief that 26 binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of 27 the State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). The court’s jurisdiction is “limited 28 to the parties in this action” and the pendency of an action “does not give the Court jurisdiction 1 over prison officials in general or over the conditions of an inmate's confinement unrelated to the 2 claims before it.” Beaton v. Miller, 2020 WL 5847014, at *1 (E.D. Cal. Oct. 1, 2020). If a 3 prisoner has been transferred, any sought injunctive relief against the previous facility becomes 4 moot if the prisoner “has demonstrated no reasonable expectation of returning to [the prison].” 5 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991); Florence v. Kernan, 813 F. App'x 325, 326 6 (9th Cir. 2020). Finally, state governments have “traditionally been granted the widest latitude in 7 the dispatch of [their] own internal affairs.” Rizzo v. Goode, 423, U.S. 362, 378 (1976) (citations 8 omitted). This deference applies even more strongly when the court is asked to involve itself in 9 the administrative decisions of a prison. See Turner v. Safely, 482 U.S. 78, 85 (1987); Sandin v. 10 Conner, 515 U.S. 472, 482-83 (1995). 11 III. DISCUSSION 12 Having reviewed Plaintiff’s Motion, the Response, the Reply, and the supporting exhibits 13 attached, the undersigned does not find Plaintiff has satisfied his burden to warrant issuance of 14 this extraordinary remedy. Plaintiff does not demonstrate a likelihood of success on the merits or 15 show that immediate irreparable injury, loss, or damage will result absent court intervention. 16 Plaintiff’s allegations do not satisfy the four elements necessary for issuance of a preliminary 17 injunction. 18 The Eighth Amendment to the United States Constitution prohibits cruel and unusual 19 punishment, interpreted as the “unnecessary and wanton infliction of pain” that is “grossly 20 disproportionate to the severity of the crime” and “totally without penological justification.” U.S. 21 Const. Amend. VIII; see also Rhodes v. Chapman, 452 U.S 337, 345-46 (1981) (internal citations 22 omitted); Farmer v. Brennan, 511 U.S. 825, 834 (1994). The Eighth Amendment standard 23 “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing 24 society” because “no static ‘test’ can exist.” Rhodes, 452 U.S. at 346 (citations omitted). 25 Not every injury a prisoner sustains while in prison represents a constitutional violation. 26 A plaintiff pursuing an Eighth Amendment conditions of confinement claim must establish both 27 an “objective component” and a “subjective component.” Farmer, 511 U.S. at 834. The 28 objective component relates to the seriousness of the challenged conditions. Id. While the 1 subjective component speaks to the state of mind of the officials responsible for the alleged 2 violation. Id.; see also Wilson v. Seiter, 501 U.S. 294, 298 (1991) (rejecting a reading that the 3 Eighth Amendment would allow liability to be imposed on prison officials solely because of the 4 presence of objectively inhumane prison conditions). A correctional official must have acted 5 with deliberate indifference to the inmate’s safety in allowing the deprivation to take place. 6 Farmer, 511 U.S. at 834. Deliberate indifference is equivalent to “subjective recklessness” as it 7 is used in criminal law, “when a person disregards a risk of harm of which he is aware.” Id. at 8 836-837. A prisoner who challenges his living conditions as violating the Eight Amendment, 9 must demonstrate unquestioned and serious deprivations of basic human needs” or of the 10 “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. at 347, accord, 11 Wilson v. Seiter, 501 U.S. at 308. The Supreme Court has determined basic human needs include 12 “food, clothing, shelter, medical care and reasonable safety” as well as “warmth [and] exercise.” 13 Helling v. McKinney, 509 U.S. 25, 32 (1993); Wilson, 501 at 304. 14 Generally, the issue in this case boils down to whether three Covid-19 protocols in place 15 at Pleasant Valley subject Plaintiff to unconstitutional conditions of confinement under the Eighth 16 Amendment: (1) requiring only a 10-day quarantine period rather than 14 days; (2) not testing 17 Covid-19 positive inmates before releasing them from quarantine to a cell with a presumably 18 healthy inmate; and (3) not providing all inmates unfettered access to adequate cleaning supplies 19 for the inmates’ cells. The undersigned concludes none of the challenged protocols standing 20 alone, nor collectively, constitute unconstitutional conditions of confinement. 21 This Court need not reiterate the history, transmission, or impact of Covid-19. Suffice it 22 to say, since early 2020, the world has been learning about and adapting to the Covid-19 virus, 23 which has perpetuated a global pandemic. Individuals with underlying health conditions—such 24 as heart, lung, or liver disease, diabetes, or advanced age—are thought to be at greater risk if 25 exposed to the virus. But, as research continues and knowledge expands, the standards for how to 26 address Covid-19 are fluctuating. The Eighth Amendment analysis is governed by the “evolving 27 standards of decency that mark the progress of an evolving society.” 28 Assuming arguendo that the conditions surrounding the Covid-19 pandemic in 1 correctional institutions satisfy the “objectively serious” prong, Plaintiff has not alleged sufficient 2 facts to satisfy the “subjective” prong of the Eighth Amendment. Plaintiff’s claims of threatened 3 harm are speculative at best. Plaintiff acknowledges that he chose to have the Covid-19 vaccine. 4 (Doc. No. 12 at 2). Additionally, Defendants produce numerous supporting exhibits detailing the 5 protocols the California Department of Corrections and Rehabilitation and officials at Pleasant 6 Valley are following in effort to keep inmates healthy. Notably, Pleasant Valley refers the Court 7 to its implementation of various protocols consistent with the Centers for Disease Control and 8 Prevention, an arm of the Department of Health and Human Services (“CDC”) guidelines,6 9 including but not limited to: 10 • Recognizing “social-distanced cohort” for purposes of double-cell housing in 11 correctional institutions. (Doc. No. 9 at 26). 12 • Requiring that masks are worn by inmate workers and correctional staff members, 13 with the exception for mask when the staff member is alone in a hard-walled 14 office, tower, or control booth, or when the staff is actively responding to an 15 incident but requires putting on the facial covering upon arrival at the incident. 16 (Id. at 11-2, ¶¶ 3, 4, 5). 17 • Making available PPE in the form of M-95 masks, KN95 masks, and surgical style 18 masks to inmates upon request. (Id. at ¶ 6). 19 • Providing upon request, cleaning chemicals and supplies to inmates. (Id. at ¶7). 20 • Testing inmates weekly for Covid-19, except those who are housed in isolation for 21 22 6 Nothing in these Findings & Recommendation shall be construed that the undersigned finds the CDC’s guidelines have the force of law or are anything more than “guidelines.” Because the issue is not before 23 this Court, the undersigned does not analyze whether the CDC’s guidelines are properly imposed, or whether the guidelines exceed the CDC’s authority under the Administrative Procedures Act. Although 24 other federal courts have found the CDC has exceeded its authority in promulgating certain rules not related to correctional institutions. See Terkel v. Centers for Disease Control and Prevention, F.Supp.3d 25 ___, 2021 WL 742877 (E.D. Texas Feb. 25, 2021) (noting “[t]he federal government cannot say that it has ever before invoked its power over interstate commerce to impose residential eviction moratorium. It did 26 not do so during the deadly Spanish flu pandemic…. Nor did it invoke such power during the exigencies of the Great Depression. The federal government has not claimed such great power at any point during 27 our Nation’s history until last year.”); see also State v. Becerra, ____ F.Supp.3d _____, 2021 WL 2514138 (M.D. Fla. June 8, 2021) (granting Florida’s preliminary injunction to enjoin CDC’s “conditional sailing” 28 order finding CDC exceeded its authority when it issued rules governing Florida’s cruise industry). 1 a positive Covid-19 test. (Id. at ¶9). Correctional officials receive the Covid-19 2 test results within forty-eight hours. (Id. at ¶10). 3 • Immediately re-housing an inmate who receives a positive test in the designated 4 housing unit for up to 14 days. (Id. at ¶11) (emphasis added)). An inmate may be 5 kept longer than 14 days in quarantine if the inmate still exhibits the Covid-19 6 symptoms passed the 14 days. (Id.) 7 • Monitoring inmates once in quarantine with body temperature and oxygen-level 8 checks. (Id.). 9 • Requiring a health care provider to “clear” an inmate before releasing the inmate 10 from isolation. (Id.). 11 • Permitting an inmate who no longer shows Covid-19 symptoms to be released 12 from quarantine earlier than 14-days. (Id. at 24.) 13 Other federal courts have found similar measures by correctional officials in comparable 14 circumstances to be reasonable and not violative of the Eighth Amendment. See Wilson v. 15 Williams, 961 F.3d 829 (6th Cir. 2020) (finding measures implemented by the federal bureau of 16 prisons to reduce the spread of Covid-19 virus reasonable and not in violation of the Eighth 17 Amendment); see also Easley v. Wetzel, 2021 WL 1200214 *1 (W.D. Pa. Feb. 26, 2021) (citing 18 Massey v. Wetzel, 2020 WL 5526688 *1 (W.D. Pa. Sept. 15, 2020)). 19 Here, Plaintiff contends Pleasant Valley is violating his protected Eighth Amendment 20 rights by not keeping Covid-19 positive inmates in quarantine for the full 14-days and by not re- 21 testing an inmate before release from quarantine. Defendant does not dispute these facts, 22 acknowledging that the inmates may be released from quarantine earlier than 14-days but only if 23 the inmate no longer has any symptoms and are “cleared” by medical, not necessarily entailing 24 another Covid-19 test. The only disputed fact on this record concerns the inmates’ respective 25 access to cleaning supplies for their respective cells. Plaintiff submits that all inmates do not have 26 access to adequate cleaning supplies for their cells. (See Doc. No. 12 at 5; 19, ¶22) (noting only 27 inmates designated as “porters” have access to the cleaning supplies). Defendant, however, 28 submits all inmates have access to cleaning supplies upon request. (Doc. No. 9 at ¶7). Plaintiff 1 acknowledges he has received the vaccine as requested. The protocols challenged by Plaintiff fall 2 far short of denying him his basic human needs. See Helling v. McKinney, 509 U.S. 25, 32 3 (1993); Wilson, 501 at 304. 4 Further, the United States Supreme Court has cautioned the lower courts about 5 micromanagement of correctional institutions, noting that the federal courts “ought to afford 6 appropriate deference and flexibility to state officials trying to manage a volatile environment.” 7 See Sandin v. Conner, 515 U.S. 472, 483 (1985) (citations omitted). “Such flexibility is 8 especially warranted in the fine-tuning of the ordinary incidents of prison life, a common subject 9 of prisoner claims.” Id. (citations omitted). This does not mean correctional authorities can do 10 and act as they please with inmates. “There is no iron curtain drawn between the Constitution 11 and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Rather, 12 correctional officials’ decisions must be logically related to institutional safety or correctional 13 goals. See generally Ponte v. Real, 471 U.S. 491, 497 (1985) (discussing whether inmates in 14 disciplinary hearings have unfettered right to all witnesses at disciplinary hearings). 15 The undersigned recommends the federal court should not involve itself in the 16 micromanagement of correctional institutions to the degree requested by Plaintiff by dictating the 17 number of days required to quarantine an inmate or directing that all inmates have unfettered 18 access to cleaning supplies. The record evidence demonstrates that quarantine is happening for 19 Covid-19 positive inmates and inmates do have access to cleaning supplies, among other 20 measures. (See Doc. No. 9 at 19, ¶ 27) (noting inmates often use dish soap liquid from the 21 canteen or any other supplies for their cells). Nor does Plaintiff allege that he asked for cleaning 22 supplies for his cell and was denied any supplies. (See generally Doc. No. 12). In fact, an 23 inmate-witness declaration attached to Plaintiff’s reply states he has “yet to see an inmate ask to 24 use a cleaning bucket or be provided any of the chemicals used to clean the housing unit.” (Id. at 25 19, ¶24) (emphasis added). This follows the adage, ask and it will be given to you, or you do not 26 receive because you do not ask. 27 Further, as acknowledged in both the complaint and amended complaint, Plaintiff has not 28 exhausted his administrative remedies before initiating the instant action. Thus, even if Plaintiff 1 asked for cleaning supplies for his cell and correctional officials denied the request, he admits he 2 has not taken the affirmative steps to bring the issue to correctional officials through the 3 administrative grievance procedure to permit them an opportunity to rectify the issue. See 42 4 U.S.C. § 1997e(a) (“[n]o action shall be brought with respect to prison conditions under 42 5 U.S.C. § 1983 or any other federal law by a prisoner confined in any jail, prison or other 6 correctional facility until such administrative remedies as are available are exhausted.”); see also 7 Jones v. Bock, 549 U.S. 199 (2007)(finding exhaustion of administrative remedies is an 8 affirmative defense defendants raise and steps taken to exhaust are governed by the particular 9 correctional institution’s rules); Booth v. Churner, 532 U.S. 731 (2001)(maintaining a prisoner 10 must exhaust administrative remedies before filing suit with a focus on the administrative 11 remedies as “are available”). 12 Based on a review of the pleadings and submissions, the undersigned finds Plaintiff does 13 not demonstrate a substantial likelihood of success on the merits, which is fatal to a motion 14 seeking a temporary restraining order or a preliminary injunction. Nor does Plaintiff demonstrate 15 likelihood of irreparable harm in the absence of preliminary relief. Thus, the undersigned 16 recommends that the district court deny Plaintiff’s motion for temporary restraining order. 17 Accordingly, it is ORDERED: 18 The Clerk of Court shall assign this case to a district judge. 19 It is further RECOMMENDED: 20 Plaintiff’s motion for a temporary restraining order (Doc. No. 2) be DENIED. 21 NOTICE TO PARTIES 22 These findings and recommendations will be submitted to the United States district judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 24 (14) days after being served with these findings and recommendations, a party may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Parties are advised that failure to file objections within the 27 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 28 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 1 5 | Dated: _ August 24, 2021 ooo. WN fereh fackt HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12