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Sargent v. Statti

September 17, 2009


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


By Order, filed on August 17, 2009 (docket # 28), plaintiff was directed to show cause why his August 6, 2009 (dkt # 21), ex parte request for immediate injunctive relief alleging an imminent threat of an attack by his cellmate, construed as a motion for a Temporary Restraining Order (TRO), had not been rendered moot upon his having been subsequently moved and placed in a single cell in a different building.*fn1 In the Order at dkt # 28, the court noted that in an Order, filed on August 7, 2009 (dkt # 23), the Attorney General and pertinent defendants had been directed to take any necessary steps to determine whether plaintiff was in imminent danger in his current housing arrangement and set an August 14, 2009, deadline for a response to plaintiff's motion. The Office of the Attorney General filed a timely opposition, on August 12, 2009. Dkt # 26.

In the show cause order, the undersigned also stated: In his request for a TRO, plaintiff averred that he was in fear of an imminent attack by his cellmate, Mike Nichols, because Nichols was "known for beating up sex offenders," and although plaintiff is "not a sex offender," his prison file indicates otherwise. Dkt # 21, pp. 1-2. Inexplicably, Nichols was supposedly provided plaintiff's "papers" by unnamed prison officials, and although Nichols evidently "didn't glance at them," plaintiff apparently felt compelled to attempt to offer an explanation to Nichols, which left plaintiff under a threat of harm. Id. In the response from the Attorney General's Office, it is noted, inter alia, that plaintiff has been moved, as of August 10, 2009, out of the cell, and into a single cell in a different building, and is awaiting a future determination of appropriate housing by the Institutional Classification Committee. See Opp., p. 2 & Declaration of Correctional Sergeant Amero (dkt # 26). Plaintiff must now show cause, by August 28, 2009, why his request for a TRO, alleging that he is "under an immediate threat of being physically harmed" from his cellmate (dkt # 21, p. 2), has not now been rendered moot.

Dkt # 28, p.2.

In his response, timely filed on August 24, 2009 (dkt # 30), plaintiff seeks to explain the deficiencies of the TRO request that the court had originally noted. See Order, filed on August 7, 2009 (dkt # 23). However, what is germane at this point is not each circumstance under which plaintiff filed his request for immediate injunctive relief, but rather whether plaintiff, in his current placement, is subject to the imminent threat of attack by a particular inmate, Mike Nichols, then his cellmate, that he perceived and that was the subject of his TRO motion. Plaintiff concedes that he has been placed in a single cell and on single cell status as a result of the court's attention to his request, but maintains that if the court should deny his request for immediate injunctive relief, the "wolves" will re-circle and the "'system' will have me terminated.'" Reply (dkt # 30), p. 4. Thus, while acknowledging, at least implicitly, that he is no longer subject to a threat of harm from his former cellmate Nichols, the subject of his TRO request, he expresses anxiety over what he apparently believes is an on-going "set up" by prison officials, who will immediately proceed to subject plaintiff to violent attack or worse in a pattern that he thinks replicates the one wherein plaintiff testified against prison guards at Pelican Bay State Prison (PBSP). Id., at 3. This pattern evidently involved Pelican Bay prison guards doing inmates favors in return for which the inmates were provided the paperwork of sex offenders so that the sex offenders could be assaulted. Id. The court has previously noted that plaintiff has alleged his status as a "special interest" inmate who has been in both federal and state custody due to safety concerns arising from plaintiff's assistance in the prosecution of PBSP prison staff. Dkt # 23, p. 1.


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.*fn2 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 proper legal standard for preliminary injunctive relief requires a party to demonstrate 'that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Stormans, Inc. v. Selecky, 571 F.3d 960, 977-978 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008).

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).

As to determining whether plaintiff is subject to irreparable harm, plaintiff's allegations simply lack coherence or anything like adequate support. Plaintiff asks that unnamed defendants be temporarily be restrained from taking his life or forcing him to take his own life.

In this case, plaintiff does not make a showing that plaintiff will be subjected to the specific circumstances which gave rise to plaintiff's TRO request. Speculative injury does not constitute irreparable harm. Goldies' Bookstore, Inc. v. Superior Court of the State of California, 739 F.2d 466, 472 (9th Cir. 1984). A presently existing actual threat must be shown, although the injury need not be certain to occur. See 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2848 (1973). Plaintiff's request for a TRO to prevent him from being assaulted by an inmate with whom he is no longer housed is denied as moot. Further, plaintiff's earlier motion for a single cell chrono, filed on June 10, 2009 (dkt # 8), which is apparently a letter directed to the defendant warden of High Desert State Prison, recounting plaintiff's alleged dreams/nightmares/night tremors about having any cellmate, will also be denied.


Third Party Motion ...

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