Ejonga v. Watanabe ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOJO DEOGRACIAS EJONGA, CASE NO. 2:21-cv-01004-RJB-JRC 11 Plaintiff, ORDER RENOTING MOTION FOR 12 v. TEMPORARY RESTRAINING ORDER AND PRELIMINARY 13 CHERYL STRANGE, et al., INJUNCTION AND DIRECTING RESPONSE 14 Defendants. 15 16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States 17 Magistrate Judge J. Richard Creatura. This matter is before the Court on plaintiff’s amended 18 motion for a temporary restraining order (“TRO”) and preliminary injunction. Dkt. 8. 19 Plaintiff is incarcerated and proceeds pro se, and the Court has granted his request to 20 proceed in forma pauperis and directed service of his complaint. Dkts. 6, 10. Plaintiff’s 21 complaint alleges that his constitutional rights will be violated by conditions that will result from 22 double-bunking cells at the Washington State Reformatory. See generally Dkt. 7. 23 Plaintiff’s amended motion for a TRO and preliminary injunction contends that 24 administrators at the Washington State Reformatory are planning to consolidate units by moving 1 prisoners from single-occupant to double-occupant cells. See Dkt. 8, at 2. Plaintiff seeks 2 immediate injunctive relief on the basis that these actions will result in overcrowding conditions 3 that violate his Eighth Amendment rights. See Dkt. 8, at 7. At the time he filed his motion, he 4 had not yet been moved and includes no indication of when he expects to be moved. Although 5 his motion characterizes the planned consolidation as “tentative,” he also states that other 6 prisoners are already being moved into double occupant units and that ladders have been drilled 7 into certain cell walls, signifying an intent to double bunk those cells. See Dkt. 8, at 3, 8. 8 Plaintiff also acknowledges that he has not notified defendants of his motion for a TRO 9 and preliminary injunction. Dkt. 8, at 5. 10 Federal Rule of Civil Procedure 65(a)(1) prohibits the Court from issuing a preliminary 11 injunction until notice has been given to the opposing party. Regarding TROs, Rule 65(b)(1) 12 disallows issuance of a TRO without notice to the opposing party unless— 13 (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before 14 the adverse party can be heard in opposition; and (B) the [movant] certifies in writing any efforts made to give notice and the 15 reasons why it should not be required. 16 Here, plaintiff acknowledges that he has made no effort to give notice, citing his 17 incarceration. The Court is not persuaded that the fact of incarceration, alone, can justify 18 entering an ex parte TRO. See, e.g., Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 19 1131 (9th Cir. 2006) (quoting Am. Can Co. v. Mansukhani, 742 F.2d 314, 322 (9th Cir. 1984)) 20 (explaining that an ex parte TRO “may be appropriate ‘where notice to the adverse party is 21 impossible either because the identity of the adverse party is unknown or because a known party 22 cannot be located in time for a hearing.’”). Thus, the Court would not issue the TRO requested 23 by plaintiff without first providing notice to defendants. 24 1 Nor does plaintiff’s affidavit or complaint clearly show that immediate and irreparable 2 injury, loss, or damage will occur before defendants can be heard in opposition. It is somewhat 3 unclear whether the consolidation of prisoners is ongoing or tentative from plaintiff’s materials. 4 Compare Dkt. 8, at 3 (describing the plan to consolidate units as “tentative”) with Dkt. 8, at 5 5 (claiming that many prisoners have already been moved into double occupancy cells). Plaintiff 6 himself had not been moved at the time he filed his motion, and he cannot bring claims of 7 overcrowding on the basis of other prisoners being transferred. See Halet v. Wend Inv. Co., 672 8 F.2d 1305, 1308 (9th Cir.1982) (stating that a party must assert his own rights, not those of third 9 parties). Plaintiff does not provide a clear basis from which the Court can determine when or if 10 he will be moved. Therefore, he has not met his burden to show that immediate injury will occur 11 before defendants can be heard in opposition, although he has raised sufficient concerns that he 12 will be moved to a double occupancy cell and about a resulting risk to his health to justify 13 requiring a response to the motion for a TRO/preliminary injunction. 14 Accordingly, the Court will direct a response to the motion for a TRO/preliminary 15 injunction before making a recommendation on plaintiff’s motion. 16 Defendants shall respond to plaintiff’s motion (Dkt. 8) on or before September 3, 2021. 17 Plaintiff may file a reply to their response on or before September 10, 2021. The motion for 18 TRO is renoted for consideration on September 10, 2021. The Clerk’s Office shall send a 19 courtesy copy of this Order to the Office of the Attorney General. 20 Dated this 19th day of August, 2021. A 21 22 J. Richard Creatura Chief United States Magistrate Judge 23 24