The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [Doc. No. 19]
On May 14, 2010, Plaintiff Carlos Rios, a state prisoner proceeding pro se, brought this action for alleged violations of his civil rights under 42 U.S.C. § 1983. Plaintiff filed a First Amended Complaint ("FAC") on June 2, 2010. [Doc. No. 5.] On July 27, 2010, Plaintiff filed a motion for a temporary restraining order ("TRO") and a preliminary injunction. [Doc. No. 19.] Plaintiff alleges Defendant*fn1 has unlawfully retaliated against him for filing a civil rights action by:
(1) refusing to return Plaintiff's property taken during a visit to the emergency room on July 9, 2010; (2) firing Plaintiff from his job assignment on July 19, 2010; and (3) informing Plaintiff on July 22, 2010, he will likely be transferred to another detention facility. [Id. at p.3-4.] Plaintiff asserts Defendant's actions have caused him to suffer irreparable injury, and he will continue to suffer irreparable harm through the continued violation of his constitutional rights until the retaliatory actions are remedied. [Id. at p.5.] Accordingly, through the pending motion, Plaintiff seeks to have his property returned, to be reinstated to his prior work assignment, and to cancel the Institutional Classification Committee's ("ICC") decision to transfer Plaintiff to another institution. [Id. at p.1.] For the reasons set forth below, Plaintiff's motion is DENIED.
The standard for issuing a TRO is similar to the standard for issuing a preliminary injunction. "A plaintiff seeking a preliminary injunction must establish 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." Winter v. Natural Res. Def. Council, Inc. (NRDC), 129 S.Ct. 365, 374 (2008) (citing Munaf v. Geren, 128 S.Ct. 2207, 2218-19 (2008)). This is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 376. Moreover, Plaintiff must show more than a mere "possibility" of irreparable harm, but instead must "demonstrate that irreparable injury is likely in the absence of an injunction." Id. at 375 (emphasis and citations omitted).
Plaintiff alleges Defendant retaliated against him on three occasions in July because he filed a civil rights action. At the time Plaintiff brought his civil rights action in May, he was incarcerated at the R.J. Donovan Correctional Facility in San Diego, California. Thus, because each of the alleged retaliatory actions taken by Defendant occurred after Plaintiff initiated this action, the exhaustion requirements of the Prisoner Litigation Reform Act ("PLRA") apply. In this matter, Plaintiff cannot raise any claims that arose after May 14, 2010, as he could not have exhausted these claims prior to bringing his lawsuit.
The PLRA amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516 (2002); McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). "The 'available' 'remed[y]' must be 'exhausted' before a complaint under § 1983 may be entertained," and "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001). Moreover, the Supreme Court held in Woodford v. Ngo, 548 U.S. 81, 90 (2006), that "[proper exhaustion] means . . . a prisoner must complete the administrative review process in accordance with the applicable procedural rules . . . as a precondition to bring suit in federal court." Id.
Here, because Plaintiff's motion for a TRO seeks to remedy alleged constitutional violations that occurred in July, after he initiated his civil rights action, he cannot demonstrate compliance with the exhaustion requirements of the PLRA. In addition, Plaintiff does not allege he exhausted his administrative remedies with respect to Defendant's failure to return Plaintiff's property taken during a visit to the emergency room; Defendant's decision to fire Plaintiff from his job assignment; and the ICC's decision to transfer Plaintiff to another facility. Although Plaintiff includes copies of two written, informal requests he made for the return of his belongings, these requests do not constitute exhaustion of his administrative remedies. [See Doc. No. 19, Exhs. B, C.] Similarly, Plaintiff's allegation that he filed a "CDC 602" with respect to the ICC's decision to transfer him, but did not receive a response, is insufficient to establish exhaustion. [Id. at p.4.] Finally, Plaintiff does not indicate he pursued any administrative remedy regarding his allegedly unlawful termination from his work assignment.
The first factor a court considers when determining whether to issue a TRO, is whether the plaintiff has demonstrated a likelihood of success on the merits. Where, as here, the party seeking a TRO does not demonstrate compliance with a prerequisite to pursuing an action in federal court (i.e. exhaustion of administrative remedies), he cannot establish a likelihood of success on the merits. Accordingly, Plaintiff's motion for a TRO and a preliminary injunction is DENIED.