ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner without counsel seeking relief pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint filed on March 3, 2010. Dckt. No. 1. Also on March 3, 2010, plaintiff filed a motion for a preliminary injunction. Dckt. No. 2. On March 8, 2010, the court found service appropriate for defendants and directed them to respond to plaintiff's motion.*fn1 Dckt. Nos. 6, 7.
Plaintiff's motion for a preliminary injunction repeats the facts and allegations of the complaint. Specifically, plaintiff seeks to prevent defendants from modifying his current level of mental health care.
A preliminary injunction will not issue unless necessary to prevent threatened injury that 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 far reaching power not 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 recently modified its standard for preliminary injunctive relief to conform to the Supreme Court's admonition in Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008), that the moving party must demonstrate that--absent an injunction--irreparable injury is not only possible, but likely.*fn2
Stormans, Inc. v. Selecky, Nos. 07-36039, 07-36040, 2009 WL 1941550 at *13 (9th Cir. July 8, 2009). Under the new standard, "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., at 13, quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. at ___, 129 S.Ct. at 375-76. 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).
Defendants' response to the motion for a preliminary injunction includes a declaration from R. Dahl, the Senior Psychologist at Mule Creek State Prison, where plaintiff is currently housed. Dckt. No. 15, Dahl. Decl. ¶ 1. Dahl indicates that the Interdisciplinary Treatment Team ("Team") held a meeting on March 16, 2010, for an evaluation of plaintiff's mental health status.
Id., ¶ 2. The Team's decision was to retain plaintiff at the Enhanced Outpatient Program level of care within the Mental Health Program. Id. Dahl further indicates that plaintiff's clinician is Dr. Lisle, who is an Enhanced Outpatient staff psychologist who will continue to provide Enhanced Outpatient level of care to plaintiff. Id., ¶ 3. In light of Dahl's declaration, defendants argue that plaintiff's motion should be denied as moot, as plaintiff has been retained at the level of care that he was receiving when he filed his motion, namely, the Enhanced Outpatient Program. Id. at 1-2.
Plaintiff argues his motion is not moot, as defendants have not provided any guarantee as to how long plaintiff will remain in the Enhanced Outpatient Program. Dckt. No. 16 at 1. Plaintiff claims Dr. Lisle is the one who decides whether to lower plaintiff's level of care and was fully intending on doing so until plaintiff initiated this action. Id., Pl's Decl. ¶ 13. Plaintiff claims that Lisle has still not reviewed plaintiff's medical history, which documents plaintiff's multiple suicide attempts and reiterates his belief that he should remain in the Enhanced Outpatient Program because it greatly reduces his suicidal tendencies. Id., ¶¶ 15, 17. Further, plaintiff states that Lisle has informed him that the Team will meet again in June, and intends to reduce plaintiff's level of care at that time, noting that it costs too much to keep plaintiff in the Enhanced Outpatient Program. Id., ¶¶ 14, 16. Plaintiff also notes that the Team meets quarterly to evaluate his mental health needs. Id.,¶ 14.
Given plaintiff's representation that the Team meets quarterly to evaluate his mental health status, plaintiff's claim does not appear to be moot, as it falls under the "capable of repetition, yet evading review" exception to the mootness doctrine. Spencer v. Kemna, 523 U.S. 1, 17 (1998) ("[T]he capable-of-repetition doctrine applies only in exceptional situations,... where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.") (internal quotation marks omitted). However, since it appears that plaintiff will remain in the Enhanced Outpatient Program, at least for the next two months, plaintiff has not shown that he will suffer irreparable harm in the absence of the requested preliminary relief. On this basis, plaintiff's motion should be denied.
Accordingly, it is hereby ORDERED that:
1. The Clerk of the Court randomly assign a United States District Judge to this case.
2. Plaintiff's March 11, 2010 motion to proceed in forma pauperis is granted. Further, it is HEREBY RECOMMENDED that plaintiff's March 3, 2010 motion for a preliminary injunction be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal ...