The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION [ECF No. 20]
On February 22, 2011, Plaintiff, a prisoner incarcerated at Calipatria State Prison and proceeding pro se, filed a Motion For a Temporary Restraining Order And/Or Preliminary Injunction. (Doc. No. 20). In his Motion, Plaintiff states that injunctive relief is necessary to prevent ongoing violations of his First Amendment Freedom to Free Exercise of Religion. Id. On June 10, 2011, Defendants filed a Motion in Opposition (Doc. No. 54). On June 22, 2011, Plaintiff filed a Reply to Defendants' Opposition. (Doc. No. 56).
In his Motion, Plaintiff claims that an injunction is necessary because he has been "denied his right to free exercise and expression of religion." (Doc. No. 20). Plaintiff argues that if his Motion is not granted, these violations will continue. Id. Specifically, Plaintiff contends that: (1) he should be allowed into the Kosher diet program as his "heart risk and bad cholesterol are rising"; (2) he should be able to receive "special religious packages" and "religious artifacts"; (3) that he and other Muslims be allowed to attend worship services; and (4) that his Ramadan and 'Eidul Fitr prayers have been severely hindered and/or refused." Id.
Injunctive relief is appropriate only when "irreparable injury" is threatened, City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), and any injunctive relief awarded must avoid unnecessary disruption to the state agency's "normal course of proceeding." O'Shea v. Littleton, 414 U.S. 488, 501 (1974) ("proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers").
A preliminary injunction is an "extraordinary remedy." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 (2008) (internal citation omitted). The court must balance "the competing claims of injury, ... the effect on each party of the granting or withholding of the requested relief, ... the public consequences in employing the extraordinary remedy of injunction," and plaintiff's likelihood of success. Id. at 374, 376-77 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). In order to obtain a preliminary injunction the plaintiff 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, 555 U.S. at 137.
An even more stringent standard is applied where mandatory, as opposed to prohibitory, preliminary relief is sought. "[W]here a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction." Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir.1984). Thus, an award of mandatory preliminary relief is not to be granted unless both the facts and the law clearly favor the moving party and extreme or very serious damage will result. See Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir.1979). "[I]n doubtful cases" a mandatory injunction will not issue. Id.
First, in order to succeed on his Motion, Plaintiff must show that he will suffer irreparable injury. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). Here, Plaintiff alleges that he has been denied his rights to Free Exercise and Expression of Religion. (Doc. No. 20). Plaintiff asserts that, as a matter of law, an ongoing deprivation of constitutional rights constitutes irreparable injury. Id. Defendant contends that Plaintiff has failed to show he will suffer irreparable injury, because he has not established how he will suffer a constitutional deprivation. (Doc. No. 50). Specifically, Defendants contend that Plaintiff has not shown how the Kosher diet interferes with his religious exercise, what "religious packages" and "artifacts" he is being barred from receiving, or how he is being prevented from worshiping. Id.
Plaintiff cites Elrod v. Burns, 427 U.S. 347, 373 (1987) for the proposition that the deprivation of constitutional rights, as a matter of law, constitutes irreparable injury. Defendants counter that Elrod was a Freedom of Association case, not a Free Exercise case. (Doc. No. 50). Defendant's argument is unavailing. The "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. at 347. Furthermore, the "loss of an ability to practice a central tenet of one's religion for any extended amount of time is clearly an irreparable injury." Luckette v. Lewis, 883 F. Supp. 471, 483 (D. Ariz., 1995).
However, even though Plaintiff is correct that the deprivation of his right to Free Exercise of Religion is an irreparable injury, he has not shown how he suffered a constitutional deprivation. His Motion contains vague allegations that he has not been allowed to worship, but there is no indication that this is actually the case. He has not stated, with specificity, how his ability to worship was constrained. Furthermore, though Plaintiff contends that this current diet is unhealthy, a proposition unsupported in Plaintiff's Motion, he has not explained how the current diet violates the tenets of his religion. (See Doc. No. 20). While he states that his chronic constipation and flatulence causes him to "be in a continous [sic] state of ritual impurity," it is does not appear that he must be placed on the Kosher diet to cure this problem. Defendants state that Plaintiff can be placed on a medical needs diet or receive other medical treatment. (Doc. No. 50 at 5).
Thus, Plaintiff has not clearly established that he will suffer an irreparable injury if an injunction is not granted.
B. Likelihood of Success on the Merits
Even if Plaintiff has established irreparable injury, he has not established a likelihood of success on the merits. Plaintiff states that he has shown a likelihood of success, and cites Shakur v. Schiro, 514 F.3d 878 (9th Cir. 2008) in support. In Shakur, a Muslim inmate argued that the prison's refusal to provide him with a Kosher diet unconstitutionally burdened his religious exercise. Id. Contrary to Plaintiff's assertions, the Shakur Court did not hold that the plaintiff was unconstitutionally burdened . See id. The Shakur court merely noted that, at the summary judgment phase, under the four factor Turner test to determine if the challenged prison regulation is valid, at least two of the factors weighed in favor on the prison, and the other two were too close to determine at the summary judgment phase. Ultimately, the Ninth Circuit merely held that unresolved factual issues, such as whether there were alternative ...