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Wilson v. Director of the Division of Adult Institutions

March 29, 2010

DAVID W. WILSON, PLAINTIFF,
v.
DIRECTOR OF THE DIVISION OF ADULT INSTITUTIONS, ET AL., DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS

Introduction

On January 29, 2010, plaintiff filed a "motion for preliminary injunction and or temporary restraining order [TRO]." By Order, filed on February 27, 2010, defendants were inter alia directed to file a response to the motion within fourteen days. Defendants opposition was filed on March 2, 2010. Plaintiff filed his reply on March 19, 2010. Plaintiff also brought a putative motion for class action and appointment of class counsel on March 19, 2010.

Underlying Allegations

The court has previously set forth the allegations*fn1 of plaintiff's June 13, 2007, second amended complaint, on which this case now proceeds,*fn2 as modified by the order, filed on June 27, 2008, dismissing several defendants and all claims except for an Eighth Amendment claim against defendants Dr. Hunt and Dr. Peterson for their alleged failure to provide adequate medical care for plaintiff, i.e., in the form of a medical chrono permitting plaintiff not to wear newly issued clothing which has large painted lettering that caused plaintiff to break out in rashes.

Specifically, plaintiff alleges that, on January 14, 2004, while he was incarcerated at R.J. Donovan (RJD), all inmates were ordered to exchange their state-issued pants and shirts for new- styled pants and shirts that had large stenciled lettering. On January 16, 2004, plaintiff began to itch where the large lettering was located and submitted a health care request for a chrono that would permit plaintiff to wear the old-style pants. On January 22, 2004, plaintiff showed defendant Hunt his leg and back rashes. Defendant Hunt gave plaintiff skin cream but, stating that the new clothing was a custody issue, refused to provide a chrono for plaintiff not to be required to wear the new clothing. Second Amended Complaint (SAC), p. 3.

Following his appeal of the issue, filed on February 17, 2004, plaintiff was seen, on February 25, 2005, by defendant Peterson, a dermatologist, who, evidently without accessing plaintiff's medical history with regard to rashes, also stated that he could not provide plaintiff with a chrono (per a Dr. Ritter, not a defendant), but did give plaintiff skin cream. The actions by these defendants violated plaintiff's Eighth Amendment rights. SAC, p. 4.

Plaintiff has since been transferred from RJD to California Men's Colony (CMCE) to California Medical Facility-Vacaville (CMF).*fn3 Plaintiff's subsequent prison appeals have evidently been denied, and plaintiff has been subjected to pain and suffering in the form of "itching and scratching," as a result of not being excepted from wearing the newer clothing with the large stenciled lettering. Plaintiff seeks declaratory and injunctive relief, as well as money damages. SAC, pp. 4-7.

Motion

In plaintiff's current motion for a TRO or preliminary injunction, plaintiff appears to be housed once more at RJD. Motion, p. 1. Plaintiff purports to seek a TRO/preliminary injunction (PI) apparently not only on behalf of himself but also a "group class" of Enhanced Outpatients (EOP) in the form of an order allowing EOP inmates to order Levis and jean jackets instead of clothing that is inappropriate for cold weather and also for "full laundry exchange."

Id. He also seeks an order for a particular clothing form, an order that will give EOP inmates laundry jobs, allegedly limited by discrimination by general population inmates and further asks that sewing kits/sewing machines be placed in the laundry room so clothing can be fixed. Id. In addition, plaintiff seeks an order that "pajamas and bathrobes stopping gender discrimination" be allowed beyond the space permitted and that the Facility 1, Clothing Supervisors I and II be removed presumably due to the state of RJD laundry and clothing which conditions are claimed to constitute cruel and unusual punishment in violation of the Eighth Amendment. Id.

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.*fn4 See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359 (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. ...


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