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Jayne v. Anderson Police Dep't

June 1, 2010

MICHAEL AARON JAYNE, PLAINTIFF,
v.
ANDERSON POLICE DEPT., ET. AL., DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a pretrial detainee, presently housed in the Shasta County Jail, proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. There are three named defendants remaining in this action: Anderson Police Department, Anderson Police Officer Blunk, and Anderson Police Officer Collier.*fn1 On May 24, 2010, plaintiff filed a document entitled "Emergency Motion for Referral to U.S. Marshals or U.S. Postal Service for Mail Tampering. . . ." (Dkt. No. 126.)

Plaintiff's motion alleges mail tampering and other claims concerning actions that allegedly took place at the Shasta County Jail, where he is currently housed. (Id.)

I. Legal Standards for Injunctive Relief

Although plaintiff styles his motion differently, it effectively seeks a temporary restraining order, a preliminary injunction, or both. A temporary restraining order is an extraordinary and temporary "fix" that the court may issue without notice to the adverse party if, in an affidavit or verified complaint, the movant "clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." See Fed. R. Civ. P. 65(b)(1)(A). The purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing. See generally, Fed. R. Civ. P. 65; see also, E.D. Cal. L. R. ("Local Rule") 231(a). It is the practice of this district to construe a motion for temporary restraining order as a motion for preliminary injunction,*fn2 particularly when, as here, the motion has been served on the adverse party. Local Rule 231(a).

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 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. 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).

In addition, as a general rule this court is unable to issue an order against individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).*fn3

II. Motion Concerning Specific Incident of Mail Tampering

With regard to plaintiff's opposition to the pending motion to dismiss, plaintiff contends that on or about April 4, 2010, jail officials at the Shasta County Jail "stole over 50 plus pages," "systematically shuffled all of the filing," and "delayed it from going out for 3 plus weeks." (Mot. at 2.) He contends the Clerk of Court did not receive his filing until May 7, 2010. (Id.)

Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). To establish a violation of this right, an inmate must show "actual injury," defined as "actual prejudice with respect to contemplated or existing litigation, such as inability to meet a filing deadline or present a claim." Id. at 348 (citation and internal quotations omitted). In addition, in order to obtain a preliminary injunction plaintiff must offer evidence that he will be irreparably injured without the injunction. Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995). "Courts generally do look at the immediacy of the threatened injury in determining whether to grant preliminary injunctions." Privitera v. California Bd. Of Medical Quality Assurance, 926 F.2d 890, 897 (9th Cir.1991) citing Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) ("a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief").

Here, although plaintiff could have suffered initial injury to his access to the courts by the delayed receipt of his second opposition, the filing of his initial opposition was also hindered by the erroneous return of the opposition by the docket clerk. (May 28, 2010 Order at 1-2.) Because the initial filing was returned, this court has no record by which to compare the initial submission to the subsequent submission. Plaintiff's May 24, 2010 opposition appears to contain all of the exhibits appended to plaintiff's initial submission. (May 28, 2010 Order at 2.) In light of these circumstances, this court vacated the pending findings and recommendations and deemed plaintiff's May 24, 2010 opposition as timely-filed. (Id.)

Thus, plaintiff cannot demonstrate actual injury as required under Lewis v. Casey, 518 U.S. at 348, for the alleged April 4, 2010 incident of mail tampering. Plaintiff's motion concerning mail tampering should be denied.

III. Other Requests Contained in Pending Motion

Plaintiff's motion also raises generalized allegations concerning mail screening, video recording of plaintiff, allegedly recording plaintiff while he talks with his defense lawyer, and plaintiff "being recorded using the restroom and showering." (Mot. at 3.) Plaintiff alleges Captain Donald Van Buskirk and Sgt. ...


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