The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR EMERGENCY AND PRELIMINARY INJUNCTIVE RELIEF (Docket no. 34)
Plaintiff Kevin D. Allen, a State prisoner incarcerated in the Security Housing Unit (SHU) at Pelican Bay State Prison (PBSP), filed this civil rights action under 42 U.S.C. § 1983 seeking monetary damages from PBSP correctional officers for injuries which occurred on January 1, 2003. In an Order dated January 13, 2004, the Court ordered the following claims served on Correctional Sgt. Bosley, Correctional Officer Wolf and Correctional Officer Waycott:
(1) excessive force against Plaintiff caused by Defendants' use of pepper spray on another inmate which resulted in injury to Plaintiff, and (2) deliberate indifference to Plaintiff's serious medical needs caused by Defendants' failure to allow Plaintiff to leave his cell and/or be decontaminated after coming into contact with the pepper spray. Defendants filed an answer to the complaint on March 5, 2004. In an Order dated June 1, 2005, the Court directed that Plaintiff's second amended complaint be served on four newly identified Defendants. The parties currently are engaged in the discovery process.
The Court now addresses Plaintiff's request that the Court enter a temporary restraining order or a preliminary injunction compelling Defendants to refrain from the further use of pepper spray in the PBSP SHU. The facts which Plaintiff relies upon to support his request are those alleged in his complaint.
The Prisoner Litigation Reform Act of 1995 restricts the power of the district court to grant prospective relief in any action involving prison conditions. See 18 U.S.C. § 3626(a); Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). Section 3626(a)(2) applies specifically to preliminary injunctive relief. See 18 U.S.C. § 3626(a)(2). In civil actions with respect to prison conditions it permits the court to enter a temporary restraining order or preliminary injunction "to the extent otherwise authorized by law" but also requires that such an order "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." Id. The court must give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief." Id.
Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction or temporary restraining order (TRO). The two standards are similar. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981). The Ninth Circuit holds that requests for injunctive relief may be satisfied by either of two sets of criteria. The "traditional" test requires the movant to (1) establish a strong likelihood of success on the merits; (2) show the possibility of irreparable injury to the plaintiff if the preliminary relief is not granted; (3) show a balance of hardships favoring the movant*fn1; and (4) show that granting the injunction favors the public interest. See Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).
The "alternative" test requires that the movant demonstrate either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in his favor. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003); Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990). If the public interest may be affected by the proposed injunction, it should also be factored into the analysis. See Bernhardt. 339 F.3d at 925.
The Ninth Circuit has explained that these two alternatives represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See Diamontiney, 918 F.2d at 795. At the very least, however, the moving party must show a fair chance of success on the merits. See Armstrong v. Mazurek, 94 F.3d 566, 567 (9th Cir. 1996); see, e.g., Bernhardt, 339 F.3d at 926, 929 (in context of civil rights suit challenging county's lump sump settlement policy that allegedly impairs a claimant's ability to obtain counsel, plaintiff was entitled to limited injunctive relief under second alternative because he had at least a "fair chance of success" on serious federal and constitutional questions).
The Court cannot say that Plaintiff does not have a fair chance of success on the merits of his damages claims against Defendants for their alleged unlawful actions on the one occasion at issue in the complaint. However, Plaintiff has not set forth facts which allege, and the Court has not found cognizable, a claim that Defendants' actions warrant the abolition of any future use of pepper spray in the SHU at PBSP. Indeed, such a claim would require this Court to find not only that Defendants' actions were unlawful with respect to Plaintiff, but that any future use of pepper spray against those categorized as the most violent prisoners incarcerated within the highest security prison in California would be unlawful as well. Plaintiff has made no showing of a fair chance of success on the merits of such a claim.
Nor has Plaintiff shown that he will suffer irreparable harm if the Court does not grant his request. There is no allegation that Plaintiff has been subjected to the use of pepper spray at any time since the actions at issue in his complaint.
Plaintiff has failed to meet the standards for emergency or preliminary injunctive relief. Accordingly, his request is denied. This Order terminates docket number 34.