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Bjorlin v. Hubbard

February 26, 2010

DANIEL P. BJORLIN, PLAINTIFF,
v.
T. HUBBARD, ET AL., DEFENDANTS.



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

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for injunctive relief, filed on January 27, 2010, to which, although no defendant had yet been served, this court ordered a response by two of the named defendants, Callison (spelled as Calison in the order) and McDonald, within seven days, by Order, filed on February 4, 2010 (docket # 15).*fn1 which response was timely filed on February 16, 2010 (docket # 20) by the Attorney-General's Office.

TRO/Motion for Preliminary Injunction

As the court stated in its Order, filed on February 4, 2010 (docket # 15), plaintiff has brought a "motion for injunction relief," which he apparently intends to be a motion for a temporary restraining order (TRO) or preliminary injunctive relief, declaring that he is in fear for his life and that his life has been threatened. Motion, pp. 1-2.

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.*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, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter v. Natural Res. Def., 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).

Underlying Allegations

As the court has previously observed, in his underlying amended complaint, filed on October 22, 2009 (docket # 12), plaintiff alleges, inter alia, violations by defendants of his rights under the Eighth Amendment by failing to protect him from a sexual assault by a cellmate, on September 22, 2009, with whom he was placed by defendant Callison*fn3 (whom plaintiff actually alleges set plaintiff up to be injured), and by showing indifference to his concerns thereafter. Amended Complaint, pp. 7-9. Plaintiff also makes claims of retaliation under the First Amendment: plaintiff alleges that after he had been raped, defendant Callison told him that the next time he got a cellmate, he (plaintiff) would not be walking out of his cell but would come out in a body bag for "snitching" against defendant Callison's partner (apparently, by having filed a grievance relating to defendant Hubbard's alleged harassment of plaintiff). Id., at 5-7. When, on September 25, 2009, plaintiff witnessed defendants Swart and Mortell "beat and punch another inmate in the face," plaintiff was threatened by them to keep silent or he might be hurt. Id., at 7-8. Plaintiff was so frightened that he informed a non-defendant social worker, Mr. Marrow, about what had happened and he called defendant Perez. Id., at 8. On September 30, 2009, defendant C/O Rainey wrote plaintiff up on a CDC-115 rules violation report (RVR) for obstructing a peace officer by refusing to accept assigned housing, stating that he did not care about plaintiff's fears of being assigned an incompatible cellmate, even after plaintiff told him that he had been the victim of a sexual assault eight days earlier and that the cellmate officials planned to put in his cell was one with whom he had had a previous physical altercation. Id., at 8-9. Plaintiff told Rainey he had even gone on suicide watch because officers had not wanted to move either one of them. Id., at 9. Although defendant Perez had granted his 602, he made no attempt to protect plaintiff. Id. Plaintiff also alleges that defendants Cummings, Lockhart and Fannon, inter alia, failed to investigate his claims and to protect him. Id., at 16-17. Plaintiff seeks money damages. Id., at 11.

Motion

In his preliminary injunctive relief motion, plaintiff, who identifies himself as a mental health patient in fear for his life, states, under penalty of perjury, that defendants have tampered with his meals and deprived of him of access to showers and law library books; he states emphatically that defendant Callison set him up to be raped by his cellmate, on September 20, 2009, an allegation he makes in the underlying amended complaint*fn4 and reiterates defendant Callison's alleged warning to him that he would come out of his cell next time in a body bag. Motion, p. 2. Plaintiff further states that on January 18, 2010, he and his cellmate, named Johnson (presumably a different cellmate from the one who allegedly raped plaintiff), had their lives seriously threatened. Id. Plaintiff states that "higher officials" have failed to take action to ameliorate the situation and that he is suffering retaliation due to his having filed a 602 grievance and a lawsuit against defendant Hubbard (by which it is unclear whether he means the instant lawsuit, wherein he sued many defendants, including Hubbard, or a different one). Id.

Plaintiff claims that on January 18, 2010, two correctional officers (C/O's), defendant Callison as well as T. Smith, a non-party, both threatened the lives of plaintiff and his cellmate, Joseph Johnson, (apparently one with whom he has no problem being housed with) stating that they were going to be separated and killed or set up to be murdered. Motion, p. 3. Plaintiff avers that both defendant C/O Callison and non-defendant C/O Smith have assaulted him on "numerous occasions" and have tampered with his food. Id., at 3-4. Plaintiff is seeking an immediate transfer from HDSP and cautions that if he should wind up injured or dead, any such event will have been orchestrated by defendant Callison and ...


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