The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). By his second amended complaint ("SAC"), as limited by the accompanying order regarding exhaustion of administrative remedies, plaintiff claims defendant Callison used excessive force on December 3, 2009, and took plaintiff's eyeglasses, all in violation of the Eighth Amendment. By his SAC, plaintiff seeks, inter alia, transfer to a different prison and monetary damages. (Dkt. No. 34 at 20.)
Pending before the court are plaintiff's motions for injunctive relief filed September 16, 2010, and November 17, 2010. Initially, plaintiff sought transfer out of High Desert State Prison because defendants have been allegedly threatening and harassing him. Plaintiff subsequently sought a restraining order requiring defendants Callison and Swart and nonparty Correctional Officer D. Vincent to be prevented from working near plaintiff. (Dkt. No. 67.) Plaintiff seeks the order against Vincent because Vincent works as the yard gunner who plaintiff alleges comes by plaintiff's cell and makes comments like, "You know how the Green Wall is." (Dkt. No. 67 at 2.) Plaintiff claims his life is in danger and that he is in fear for his life.
Defendants contend that the officers named by plaintiff in the pending requests are correctional officers who have no authority to transfer plaintiff. Defendants also argue that plaintiff has failed to demonstrate he is likely to succeed on the merits of this action, or that he is likely to suffer irreparable harm in the absence of preliminary relief.
I. Legal standards for injunctive relief
Although plaintiff styles his motions for injunctive relief in different ways, all of them effectively seek 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,*fn1 particularly when, as here, the motion has been served on the adverse party.
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., 555 U.S. 7, 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).
First, plaintiff seeks injunctive relief against individuals who are not named as defendants in this action. This court is unable to issue an order against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Therefore, plaintiff's motions for injunctive relief against nonparty correctional officers are dismissed.
Second, the principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision after a trial on the merits. See C. Wright & A. Miller, 11 Federal Practice and Procedure, § 2947 (1973). In addition to demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must show a "fair chance of success on the merits" of his claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claim raised in the request for injunctive relief when the action is brought to trial.
Plaintiff alleges various correctional officers, including defendants, have made threatening statements to him and are harassing him. Such statements, if true, reflect poor judgment and a lack of professionalism. However, allegations of threats and verbal harassment do not state a claim under the Civil Rights Act. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) ("it trivializes the eighth amendment to believe a threat constitutes a constitutional wrong"); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983). "[A]n institutional employee's verbal harassment or idle threats to an inmate, even if they cause an inmate fear, anxiety, or discomfort, do not constitute an invasion of any identified liberty interest." McClellan v. Bassett, 2006 WL 2079371 (D.Va. 2006); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner does not have cause of action under § 1983 for being called obscene name by prison employee).
On the other hand, plaintiff also appears to allege the threats were undertaken in retaliation for plaintiff's grievance and lawsuit against defendant Callison. These correctional officers may be attempting to use verbal threats and harassment in an effort to dissuade plaintiff from pursuing the instant action. Retaliatory actions taken against a prisoner for exercising his First Amendment rights violate the constitution whether or not the underlying misconduct would establish a constitutional violation:
Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). An allegation of harm, rather than of chill, may be a sufficient basis for a claim of retaliation. Pratt v. Rowland,65 F.3d 802, 807 (9th Cir.1995); ...