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Title Dominic Lucero v. B. M. Cash

November 8, 2011

TITLE DOMINIC LUCERO
v.
B. M. CASH, ET AL.



The opinion of the court was delivered by: Christina A. Snyder, United States District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Rita Sanchez

N/A N/A Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: IN CHAMBERS: MOTION FOR PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER (ECF No. 39.)

I. Proceedings

On June 23, 2010, Dominic Lucero ("Plaintiff") filed a pro se Civil Rights Complaint pursuant to 42 U.S.C. § 1983 ("Complaint"). (ECF No. 3.) On June 10, 2011, the Court dismissed the Complaint with leave to amend. (ECF No. 30.) On July 14, 2011, plaintiff filed a First Amended Complaint ("FAC"), along with numerous supporting exhibits. (ECF No. 33.) On July 26, 2011, the Court ordered service of the FAC. (ECF No. 35.) On July 29, 2011, Brenda M. Cash (Warden of California State Prison, Los Angeles County ("CSPLAC")), T. Belavich (Health Care Manager), Paullette Finander (Chief Medical Officer), Junard Fitter (Primary Care Provider), and J. Thomas (Licensed Vocational Nurse) (collectively "Defendants") filed an Answer to the FAC. (ECF No. 37.) On August 25, 2011, the Court issued its Order Re: Discovery and Motions. (ECF No. 40.)

On August 22, 2011, plaintiff filed Motion for Preliminary Injunction and/or Temporary Restraining Order, along with a supporting declaration and exhibits. (ECF Nos. 39, 43.) Defendants did not file an Opposition to plaintiff's Motion, nor did the Court order defendants to file an Opposition.*fn1

The Court finds this matter suitable for decision without oral argument. Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons set forth below, the Court denies plaintiff's Motion for Preliminary Injunction and/or Temporary Restraining Order.

II. Discussion

Legal Standard

The standards for issuing a temporary restraining order and a preliminary injunction are "substantially identical." Stuhlbarg Int'l Sales Co. v. John D. Brushy & , 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The Ninth Circuit summarized the Supreme Court's recent clarification of the standard for granting preliminary injunctions in Winter as follows: "[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." Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see also Cal Pharms. Ass'n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009) ("Cal Pharm. I"). Alternatively, "'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." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). A "serious question" is one on which the movant "has a fair chance of success on the merits." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).

Analysis.

In the FAC, plaintiff alleges a First Amendment retaliation claim, an Eighth Amendment claim based on deliberate indifference to his serious medical needs, and a Fourteenth Amendment Substantive Due Process claim. (FAC ΒΆΒΆ 50-76.) ...


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