UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 27, 2010
FRANCISCO GIL, PETITIONER,
JAMES A. YATES, RESPONDENT.
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate Judge on October 13, 2009. (Court Doc. 5.)
Petitioner filed the instant petition for writ of habeas corpus on September 28, 2009. (Court Doc. 1.) In his petition, he challenges a January 24, 2007, California Department of Corrections and Rehabilitation Rules Violation Report for unauthorized possession of controlled medication. (Id.) Petitioner contends that he was improperly assessed with a 121 day credit forfeiture and that under prevailing law he should not have been assessed with a credit forfeiture of more than 30 days. (Id.)
On March 18, 2010 Petitioner filed "Affidavit of Francisco J. Gil in Support of Preliminary Injunction Motion." (Court Doc. 11.) Since the federal courts have a duty to construe pro se pleadings liberally. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quotation omitted)), the Court will construe Petitioner's March 18, 2010 affidavit and accompanying documents as a motion for preliminary injunction. (Court Doc. 11.) Therein Petitioner contends that he was improperly assessed with a 121 day credit forfeiture and requests injunctive relief in the form of a reduction in amount of day credits forfeited and requests that he be immediately released from prison. (Court Doc. 11, p. 6.)
Rule 65(a) of the Federal Rules of Civil Procedure allows the Court to issue a preliminary injunction. The Court can issue a temporary restraining order if the moving party has shown either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the moving party's] favor." Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. "Under either formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury." Id. In the absence of a significant showing of irreparable injury, the Court need not reach the issue of likelihood of success on the merits. Id.
Similarly, to obtain a preliminary injunction, a party must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987.)
Petitioner has not shown probable success and irreparable injury or serious questions going to the merits and greater hardship. He has failed to meet his burden of demonstrating entitlement to injunctive relief. His motion for injunctive relief merely reasserts and re-argues the merits of his petition for writ of habeas corpus. The merits of that petition will be resolved in due course. The Court's pending case load is substantial. It must act first on the cases that have been pending the longest.
Based on the foregoing, it is HEREBY ORDERED that Petitioner's motion for a preliminary injunction is DENIED.
IT IS SO ORDERED.
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