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Howard v. Nunley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 12, 2010

CLARENCE HOWARD, PLAINTIFF,
v.
C/O J. NUNLEY, DEFENDANT.

ORDER

Before the Court is Plaintiff's Motion for Temporary Restraining Order (doc. # 26), which the Court denies. "A temporary restraining order is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction." Whitman v. Hawaiian Tug & Barge Corporation/Young Bros. Ltd. Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw. 1998). "The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction." Id. To obtain a preliminary injunction, the moving party must show 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 its favor." Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999). These are not two separate tests; they represent "extremes of a singular continuum." Id. Plaintiff requests an injunction to prevent Defendants from (1) using unlawful excessive force against him; (2) unlawfully spraying him with pepper spray; (3) falsely imprisoning him within the administrative segregation unit without cause; and (4) offering false documentary evidence against him. Plaintiff further requests that Defendants be ordered to transfer him to a new prison, and that Defendants be ordered to stay five-hundred feet away from him. However, Plaintiff's request for immediate injunctive relief is not adequately supported. A presently existing actual threat must be shown, although the injury need not be certain to occur. See FDIC v. Garner, 125 F.3d 1272, 1280 (9th Cir. 1997). "Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction. A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis in original) (citations omitted). While Plaintiff has, for example, alleged that Defendants unlawfully sprayed him with pepper spray without provocation on February, 5, 2009, Plaintiff has made no showing that there is an immediate threat that Plaintiff will be again subjected to similar conduct in the future. The same is true of Plaintiff's other claims. Plaintiff also requests a preliminary injunction requiring prison officials to return all of Plaintiff's personal property that was taken by them. However, Plaintiff does not allege in his motion that Defendants have unlawfully deprived him of his personal property. Therefore, Plaintiff cannot establish a likelihood of success on the merits or the possibility of irreparable injury.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Temporary Restraining Order (doc. # 26) is denied.

20100112

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