Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.*fn1 He has filed three motions for preliminary injunctive relief. Dckt. Nos. 13, 14,15. For the reasons provided below, the motions must be denied.
In all three motions, plaintiff seeks to stop his transfer out of California State Prison -- Solano (hereinafter "CSP -- Solano"), which plaintiff contended would occur before the end of March 2011. He asks the court to order defendant Long, along with non-parties Alvaro Traquina, M.D., and R. Tan, M.D., to halt the transfer, alleging that Traquina and Tan falsified medical documents at the behest of Long to qualify plaintiff for a disability-based transfer out of CSP-Solano. Plaintiff alleges that the individuals took this action to retaliate against plaintiff for this lawsuit and another suit he states he has pending against Traquina.
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., 555 U.S. 7, 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). Additionally, 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 this action , plaintiff alleges that defendant Long and other defendants subjected him to cruel and unusual punishment by forcing him to work at a job that required him to take actions that caused him pain due to his serious medical conditions. Defendant Long advised plaintiff that if he did not work, he would be transferred. Dckt. No. 1 at 8.*fn2 He requests damages and an injunction ordering defendants to provide him with a proper work assignment based on his physical limitations, but his complaint contains no request for an injunction prohibiting his transfer to another institution. Id. at 12.
Plaintiff argues that he is likely to succeed on the merits of this action because: Defendants have intentionally interfered with license doctor prescribed health care treatment. Dr. Traquina, M.D. takes orders from Defendant Long and other non-medical-staff to take away prescribed health care treatment and then alter medical records to state the treatment is not necessary. Defendant Long previously asked Dr. Traquina, M.D. to classify Plaintiff as DPP until Dr. Shadday, M.D. performed the required physical/mobility examination.
"DPP" refers to the California Department of Corrections and Rehabilitation's "Disability Placement Program," in which inmates with disabilities are categorized in an attempt to comply with the injunction issued in the Armstrong litigation (N.D. Cal. Case No. C 94-2307 CW) to ensure that California prisons comply with the Americans with Disabilities Act. See Dckt. No. 15 at 19-25 (January 2010 CSP-Solano memorandum regarding the Disability Placement Program).
Under the DPP, as instituted by CSP-Solano, inmates meeting certain criteria are given specific classifications that determine whether they will remain at CSP-Solano or be transferred to another institution. Id. at 21. Inmates who have a lower extremity mobility impairment and require level terrain and no obstructions in their path of travel must also be transferred from CSP-Solano, even if they are able to walk 100 yards without pause, under the designation "DNM: Mobility Impairment (Lower Extremities)." Id.
Plaintiff's attachments show that Dr. Traquina recommended designating plaintiff "DNM" requiring relatively level terrain and no obstructions in his path of travel in February 2011. Id. at 13-14. As of March 8, 2011 (the same day plaintiff's first preliminary injunction motion was filed), a request by Office Assistant Lakeiza L. Roberts was pending that plaintiff receive a physical examination to determine whether he meets DPP criteria, based on plaintiff's complaint that Dr. Traquina's recommended designation was not accompanied by the required examination. Id. While plaintiff contends that Dr. Jude Shadday at an unspecified time determined that plaintiff did not meet DPP criteria, his documentation does not support that contention. Plaintiff cites to his Exhibit C, a difficult-to-read handwritten document apparently authored by Dr. Shadday in 2009 that notes that plaintiff has certain mobility impairments and does not appear to refer to the DPP. Id. at 27. Plaintiff filed an administrative appeal regarding Dr. Traquina's recommendation in late February 2011. Id. at 10-12.
While plaintiff may disagree with his DPP designation, he has not provided the court with anything beyond his own conclusory assertions to show that the designation was made in retaliation for his legal filings. Moreover, plaintiff has made no showing that he is likely to succeed on the claims actually raised in his complaint (that defendant Long and others subjected him to cruel and unusual punishment by requiring him to work at a job he could not perform due to his disabilities).
Plaintiff has also failed to show that he is likely to suffer irreparable harm if an injunction does not issue. Plaintiff claims that his court evidence and "health care appliances and treatments" will be lost in the transfer. Plaintiff's speculation that his property will be lost does not amount to a showing of irreparable injury. Goldie's Bookstore v. Super. Ct., 739 F.2d 466, 472 (9th Cir. 1984) ("Speculative injury does not constitute irreparable injury."). Moreover, should plaintiff's property be lost, he may seek recourse through the prison appeals process and the courts; accordingly, such injury is not irreparable.
As for the balance of hardships and public interest aspects of the preliminary injunction inquiry, these elements do not tip clearly in plaintiff's favor. While plaintiff alleges that CSPSolano has accommodated his physical limitations since 1992 and would not suffer if made tocontinue to do so, the court is wary of interfering with the prison's attempt to comply with the Armstrong injunction, especially in this case, where plaintiff's complaint does not challenge his DPP classification, that classification has apparently not been made permanent, and plaintiff's administrative appeal of the classification remains pending.
For the foregoing reasons, plaintiff's March 8, 2001, March 11, 2011, and March 16, 2011 requests for injunctive relief ...