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Dan S. Geiger v. Michael Benov

November 23, 2011

DAN S. GEIGER,
PLAINTIFF,
v.
MICHAEL BENOV, WARDEN; AND TAFT CORRECTIONAL INSTITUTION,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

MEMORANDUM DECISION AND ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER (DOC. 1)

I.INTRODUCTION

Plaintiff Dan S. Geiger, who is presently incarcerated at Taft Correctional Institution ("Taft") in Taft, California and is represented by counsel, requests that his motion for a temporary

restraining order ("TRO") be heard the week of November 28, 2011. On November 4, 2011, Plaintiff filed a "Complaint," which incorporates a memorandum in support of Plaintiff's application for a TRO and preliminary injunction. Plaintiff alleges that Taft and Taft's Warden, Michael Benov, have violated 42 U.S.C. § 1983 by refusing to deviate from standard institutional procedures regarding inmate legal phone calls and visits, to permit extended and more frequent phone calls as well as in-person legal meetings on days not normally set aside for such meetings. Doc. 1. Summons was issued by the Clerk of Court on November 8, 2011, but was not served on Defendants until November 17, 2011. Docs. 7-10. On November 22, 2011, Plaintiff's counsel contacted the Court requesting a hearing date on his request for a TRO. For the reasons set forth below, the TRO request is DENIED. No hearing date will be provided.

II.DISCUSSION

A.Jurisdiction.

Plaintiff asserts that jurisdiction exists in this case pursuant to 42 U.S.C. § 1983. However, section 1983 applies to actions or omissions taken "under color of state law." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). Taft, a privately-run federal correctional facility, is not a "state actor" for purposes of § 1983. Rather, the proper mechanism for Plaintiff's Complaint is an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 For purposes of this order only, the Court will construe Plaintiff's complaint as one arising under Bivens *fn2.

B.TRO Request.

Injunctive relief is an "extraordinary remedy, never awarded as of right." Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7 (2008). As such, the Court may only grant such relief "upon a clear showing that the plaintiff is entitled to such relief." Id. To prevail, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm absent preliminary injunctive relief; (3) that the balance of ...


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