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Gipbsin v. Kernan

June 9, 2009

CLARENCE A. GIPBSIN, PLAINTIFF,
v.
SCOTT KERNAN, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Pending before the court are plaintiff's motions for a temporary restraining order and/or preliminary injunctive relief. For the reasons explained below, the court recommends that each of plaintiff's motions be denied.

I. Plaintiff's Motions

A. "Motion [F]or Change of Address" (September 22, 2008)

Plaintiff states that he "moves the court for a change of address," which the court construes as a request for injunctive relief to prohibit an institutional transfer to North Kern State Prison. Plaintiff states that he was notified on September 18, 2008, that he would be transferred from High Desert State Prison to North Kern, where in 1996, he was purportedly beaten, forcefully medicated, and subjected to racial epithets.

B. "Motion for Retaliation for Filing Civil Case Immediate TRO" and "Motion for Joint District 'TRO' Protection Order" (November 10, 2008)

In plaintiff's November 10, 2008 motions, he claims that while housed at High Desert, officers extracted him from his cell, confiscated his property, and beat him. He also claims that he was involuntarily transferred to another cell that was contaminated with pepper spray. Plaintiff apparently resisted officers during the cell transfer, and plaintiff was later charged with battery on a peace officer and placed in administrative segregation. Plaintiff requests that the court order that his legal property be returned to him to prepare for a December 9, 2008 trial in a separate civil action and that he be placed in federal custody.

C. "Motion for Federal Placement Protection" (November 24, 2008)

Plaintiff states that on October 27, 2008, correctional officers extracted him from his cell, beat him, placed him in administrative segregation, denied him his religious meals, and denied him access to the prison law library. From there, plaintiff alleges that officials transferred him to the "Z-unit," where the windows are covered with paper and plaintiff has no "outside contact." Alleging that he is continually harassed and "written up," plaintiff requests placement in federal custody.

D. "Confidential Motion and Sworn Certificate" (March 9, 2009)

Plaintiff requests that the court transfer him to a federal prison because officials at High Desert are allegedly retaliating against him for filing lawsuits. Specifically, plaintiff states that High Desert officials falsely accused him of battery on a peace officer, and sentenced him to a term in the Security Housing Unit. Further, plaintiff states that officials at High Desert refuse to transfer him to Atascadero State Mental Hospital, even though a state court ordered that he be transferred there over two years ago.

II. Standards

A temporary restraining order is available to an applicant for a preliminary injunction when the applicant may suffer irreparable injury before the court can hear the application for a preliminary injunction. Fed. R. Civ. P. 65(b) (motion for preliminary injunction shall be set for hearing at earliest possible time after entry of temporary restraining order); Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 439 (1974) (temporary restraining order issued in state court expired ten days after action was removed to federal court). The standards for issuing a temporary restraining order are the same as those for a preliminary injunction. See Fed. R. Civ. P. 65(b); see also Hawaii County Green Party v. Clinton, 980 F. Supp. 1160, 1163 (D. Hawai'i 1997).

A preliminary injunction will not issue unless necessary because threatened injury would impair the court's ability to grant effective relief in a pending action. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a very far reaching power never to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). The Ninth Circuit standards for preliminary injunctive relief are well established:

"The purpose of a preliminary injunction is to preserve rights pending resolution of the merits of the case by the trial." Big Country Foods, Inc. v. Bd. of Educ., 868 F.2d 1085, 1087 (9th Cir. 1989). A preliminary injunction is appropriate "where plaintiffs demonstrate either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in their favor." Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) Shelley, 344 F.3d at 917 (internal quotation marks and citations omitted). "The irreducible minimum is that the moving party demonstrate a fair chance of success on the merits or questions serious enough ...


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