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Joel Holley v. Gary Swarthout


March 17, 2011



March 17, 2011.



Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He requests a temporary restraining order to prevent him from being transferred to another institution until litigation in this action has concluded. Dckt. Nos. 23, 24, 25. Plaintiff states that on February 9, 2011 a classification committee recommended that he be transferred to a different institution in order to meet plaintiff's unspecified medical needs. Dckt. No. 24. at 1-2. Plaintiff states that any transfer to another institution will (1) interfere with his ability to communicate with potential witnesses for this lawsuit, and (2) interfere with his ability to gather relevant paperwork for his November 2011 parole hearing. Id. As explained below, it is recommended that plaintiff's request for a temporary restraining order be denied.

"The standards for granting a temporary restraining order and a preliminary injunction are identical." Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is "substantially identical" to an analysis of a temporary restraining order). 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). In order to be entitled to preliminary injunctive relief, a party must 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) (citing Winter v. Natural Res. Def. Council, Inc., __ U.S. __, 129 S.Ct. 365, 374 (2008)). The Ninth Circuit has also held that the "sliding scale" approach it applies to preliminary injunctions--that is, balancing the elements of the preliminary injunction test, so that a stronger showing of one element may offset a weaker showing of another--survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). "In other words, 'serious questions going to the merits,' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. 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).

Plaintiff has not shown a likelihood of success on the merits, nor has he shown any relationship between the preliminary relief sought and the subject matter of this lawsuit. This action proceeds on plaintiff's equal protection claims against defendants Singh, Sisto, Kesterson, Roger, Fox, Torres, and Swarthout, based on their alleged imposition of race-based lockdowns. Dckt. No. 5. In contrast, his motion for injunctive relief involves his alleged need to remain confined at his current institution. Apart from plaintiff's unsupported allegations there is no evidence establishing that plaintiff is likely to prevail on his equal protection claims, or that the injunction sought is necessary to preserve the court's ability to grant effective relief on those claims and that it is the least intrusive means for doing so. Additionally, inmates do not have a constitutional right to be housed at a particular facility or institution or to be transferred, or not transferred, from one facility or institution to another. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam).

The motion for injunctive relief is related to this lawsuit in that plaintiff claims he will lose contact with potential witnesses. However, plaintiff fails to show irreparable injury in this regard. He does not explain why he cannot obtain any necessary affidavits from these witnesses prior to any transfer. Nor does plaintiff explain why a transfer would likely result in an end to all communication with these witnesses. While face-to-face communications would no longer be an option, plaintiff does not indicate why other, albeit less convenient, forms of communication, including processes to compel attendance at trial, would be unavailable to him.

Accordingly, it is hereby ORDERED that the Clerk shall randomly assign a United States District Judge to this case.

Further, it is RECOMMENDED that plaintiff's February 16, 2011 request for a temporary restraining order 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)(l). Within fourteen 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 the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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