(PC) McElroy v. Gomez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN MCELROY, ) Case No.: 1:20-cv-00658-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 GOMEZ, et al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING PLAINTIFF’S MOTION FOR ) A TEMPORARY RESTRAINING ORDER BE 16 ) DENIED ) 17 ) [ECF No. 11] 18 Plaintiff Latwahn McElroy is proceeding 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 15, 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 authority-asserting measure stating the time within which the party serve must appear to defend.). 1 Furthermore, the pendency of this action does not give the Court jurisdiction over prison officials in 2 general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 599 3 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to the 4 viable legal claims upon which this action is proceeding. Summers, 555 U.S. at 491−93; Mayfield, 5 599 F.3d at 969. 6 A temporary restraining order is an extraordinary measure of relief that a federal court may 7 impose without notice to the adverse party if, in an affidavit or verified complaint, the moving party 8 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 9 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The standard for 10 issuing a temporary restraining order is essentially the same as that for issuing a preliminary 11 injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) 12 (analysis for temporary restraining orders and preliminary injunctions is “substantially identical”). 13 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 14 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 15 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 16 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 17 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction may 18 only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 19 “Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to 20 obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th 21 Cir. 2011). 22 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison 23 Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, 24 extends no further than necessary to correct the violation of the Federal right, and is the least intrusive 25 means necessary to correct the violation of the Federal right.” Section 3626(a)(2) also places 26 significant limits upon a court’s power to grant preliminary injunctive relief to inmates. “Section 27 3626(a) therefore operates simultaneously to restrict the equity jurisdiction of federal courts and to 28 protect the bargaining power of prison administrators – no longer may courts grant or approve relief 1 that binds prison administrators to do more than the constitutional minimum.” Gilmore v. People of 2 the State of California, 220 F.3d 987, 999 (9th Cir. 2000). 3 II. 4 DISCUSSION 5 In his motion, Plaintiff seeks a temporary restraining order directing Defendants Gomez, 6 Bjork, and Daniels “to procedure a medically appropriate extensive [course] of recovery therapy,” and 7 to provide all necessary medication and treatment. (Mot. at 1-2, ECF No. 11.) 8 As an initial matter, on June 11, 2020, the Court screened Plaintiff’s complaint, found that 9 Plaintiff failed to state any cognizable claim upon which § 1983 relief can be granted, and granted 10 thirty days to file an amended complaint. Therefore, Plaintiff has necessarily failed to show, for 11 purposes of justifying preliminary injunctive relief, any likelihood of success on the merits of his 12 claims. Winter, 555 U.S. at 20. Therefore, the United States Marshal has yet to effect service on any 13 Defendant, and Defendants have no actual notice. Therefore, the Court has no personal jurisdiction 14 over any Defendant at this time. Fed. R. Civ. P. 65(d)(2); Murphy Bros., Inc. v. Michetti Pipe 15 Stringing, Inc., 526 U.S. 344, 350 (1999); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727-28 (9th Cir. 1983). 16 Further, even if the Court had personal jurisdiction over the individuals named in the 17 complaint, Plaintiff has failed to demonstrate imminent irreparable harm necessary to support a 18 preliminary injunction. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies v. Cottrell, 632 19 F.3d 1127, 1131 (9th Cir. 2011). “The fact that plaintiff has met the pleading requirements allowing 20 him to proceed with the complaint does not, ipso facto, entitle him to a preliminary injunction.” 21 Claiborne v. Blauser, No. CIV S-10-2427 LKK, 2011 WL 3875892, at *8 (E.D. Cal. Aug. 31, 2011), 22 report and recommended adopted, No. CIV S-10-2427 LKK, 2011 WL 4765000 (E.D. Cal. Sept. 29, 23 2011). Instead, to meet the “irreparable harm” requirement, Plaintiff must do more than simply allege 24 imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 25 668, 674 (9th Cir. 1988). Mere “[s]peculative injury does not constitute irreparable injury sufficient to 26 warrant granting a preliminary injunction.” Id. at 674-75. 27 Plaintiff has simply failed to demonstrate irreparable harm as he merely requests, without 28 specific factual support, that certain medical devices be provided to him. Moreover, Plaintiff’s claim wOASe UVM YOU IN IN SPA MVOC tu POO NP EN AY IT Mt 1 || that medical devices were confiscated from his cell is belied by the fact that his inmate appeal was 2 || denied finding that the only device that was confiscated was a back brace which had been 3 || discontinued. (Mot. Ex. 1A.) Plaintiff's vague allegations do not support a finding of irreparable 4 future harm. Accordingly, Plaintiff's request for a temporary restraining order should be denied. 5 Il. 6 ORDER AND RECOMMENDATION 7 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 8 || Fresno District Judge to this action. 9 Further, it is HEREBY RECOMMENDED that Plaintiff's motion for a temporary restraining 10 || order (ECF No. 11), be DENIED. 11 These Findings and Recommendation will be submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one (2 13 || days after being served with these Findings and Recommendation, Plaintiff may file written objectiot 14 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 || Recommendation.” Plaintiff advised that failure to file objections within the specified time may 16 || result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson 17 || v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Ci 18 || 1991)). 19 20 ||} IT IS SO ORDERED. Al (Fe _ 21 lIDated: _ June 16, 2020 OF 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28