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Baldwin v. California Dep't of Corrections and Rehabilitation

June 9, 2009

GREGORY V. BALDWIN, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. By Order (docket # 9), filed on 5/18/09, plaintiff's pro se complaint, filed on 3/16/09, was found appropriate for service as to the following five defendants for a violation of his rights under the Eighth Amendment: Officers J. Fannon and M. Gray; Sergeant R. Barton; the Deputy Warden*fn1 and Acting Warden of High Desert State Prison.*fn2 Pending before the court is plaintiff's 5/13/09, "motion for emergency injunctive relief," seeking a prison transfer, which the court construed as a motion for a temporary restraining order (TRO) and which the undersigned ordered served upon the Office of the Attorney General, on 5/18/09 (docket # 12), along with a copy of the original complaint. A response was provided by the Office of the Attorney General as a special appearance, expressly without waiving service upon defendants, was filed timely on 6/02/09. Docket # 17. Following a careful review, the court recommends denial of the motion. Legal Standard for Injunctive Relief

TRO

The purpose in issuing a temporary restraining order is to preserve the status quo pending a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary restraining order due to the fact that very few such orders can be appealed prior to the hearing on a preliminary injunction. It is apparent, however, that requests for temporary restraining orders which are not ex parte and without notice are governed by the same general standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the emphasis of the court is directed to irreparable harm and the balance of hardships because the merits of a controversy are often difficult to ascertain and adjudicate on short notice.

Preliminary Injunction Standard

The legal principles applicable to a request for injunctive relief are well established. To prevail, the moving party must show either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. "Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury." Id. In the absence of a significant showing of possible irreparable harm, the court need not reach the issue of likelihood of success on the merits. Id.

In cases brought by prisoners involving conditions of confinement, any preliminary injunction "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 the harm." 18 U.S.C. § 3626(a)(2).

Plaintiff's Underlying Allegations

The gravamen of plaintiff's complaint is that he was subjected to excessive force by defendants Fannon and Gray at High Desert State Prison (HDSP) on 2/29/08, despite having been ordered by a physician to be put on single cell status, pending the outcome of neck surgery, and despite having been cautioned by a Mercy Hospital physician (Dr. Rahimifar) that if he were hit in the head one time, he would never walk again. Complaint, pp. 3-4.

Plaintiff claims that defendant Fannon told plaintiff on 2/29/08 that he would be moved to the gym, but plaintiff told Fannon that, due to his severe neck injury, he would go to administrative segregation (ad seg or ASU) instead. Plaintiff was then taken in waist restraints to the program office where defendant Barton told plaintiff that he did not "give a s- - t" about plaintiff's neck injury and that HDSP made its own rules. Id.

When plaintiff, still in waist restraints, saw that he was then being taken to the gym, he stopped walking; thereafter, defendants Fannon and Gray forced plaintiff into the gym, smashing his head into a door, after which he was taken to Lassen Medical Facility where a doctor told him he had suffered a severe cervical strain. (Plaintiff notes that he has a pending § 1983 action in the Ninth Circuit with respect to the accident that caused the original C-2 fracture at Lancaster State Prison in 2005). Id., at 4

Plaintiff was told by the deputy warden that he does not care that plaintiff was "fil[]ing charges against the officers," and that he should do as he was told and he would not get hurt. Plaintiff states that he fears for his life and safety and is fearful of retaliation. Plaintiff asks for money damages from each defendant (including the warden for "let[t]ing this happen"). Plaintiff also asks for injunctive relief in the form of an emergency transfer. (Plaintiff also asks that lost time credits be restored). Id., at 3-4.

Among the exhibits plaintiff attaches to his complaint are a copy of an HDSP inmate appeal he filed through to the third level denial, regarding his request for a transfer and appealing the incident giving rise to the instant cause of action (Complaint, pp. 17- 32); a copy of classification chrono, showing plaintiff had a classification score of 41 as of 12/26/07, and noting that he was unassigned at that time due to medical concerns (Complaint, p. 33); a copy of letter directed to a an Internal Affairs special agent in Rancho Cucamonga, complaining of the alleged actions by defendants Fannon and Gray herein (Complaint, pp. 35-36); a copy of a Disability Placement Program form, dated 6/12/08, showing plaintiff is an intermittent wheelchair user, restricted to a lower bunk and no stairs (Complaint, p. 37), and copy of 2/29/08 rules violation report which eventually resulted in plaintiff's being found guilty of attempted battery on a peace officer (defendant ...


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