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Meador v. Hammer

January 18, 2012

GORDON D. MEADOR, PLAINTIFF,
v.
M. HAMMER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Motion for Temporary Restraining Order/Preliminary Injunctive Relief

Introduction/Background

Plaintiff, a state prisoner proceeding pro so, seeks relief pursuant to 42 U.S.C. § 1983. As previously set forth, in the court's order, filed on December 20, 2011 (docket # 8), in a motion for a preliminary injunction, plaintiff, under penalty of perjury, avowed that first watch staff and officers at California State Prison - Sacramento (CSP-Sac) have a policy or practice of refusing to respond to "man-down" calls for inmates in need of emergency medical care. See Motion, at docket # 2. Plaintiff referenced three instances wherein defendants Hammer and Asad refused to respond to any man-down calls in B-yard cell blocks 7 and 8. Id. Plaintiff stated that he has had asthma attacks and no inhalers and that he has had two heart attacks and been taken by ambulance to a hospital three times for cardiac problems, has liver problems, is diabetic and is handicapped due to damage to his spine. Id. Seeking immediate relief to stop this allegedly on-going policy or practice, plaintiff claimed that he has had to go so far as to break a cell window for attention to a life-threatening condition and that an inmate has died due to this alleged practice.

The underlying complaint, filed on the same day, December 16, 2011, as the motion for TRO/preliminary injunctive relief, references an incident alleged to have occurred on August 13, 2011, when plaintiff, suffering neck and chest pain, numbness in his left arm and shortness of breath, was told by defendants Hammer and Asad who eventually arrived after fellow inmates had been loudly trying for an hour to get help for plaintiff to "shut the fuck up," after which they walked away. Complaint, pp. 3-4. Plaintiff, in great fear, banged on his cell window with his walking cane, shattering the cell window. Id., at 4. When defendant Hammer finally returned and noticed the broken window, he told defendant Shaw who had plaintiff and his cellmate removed, handcuffed and placed in cages. Id., at 4-5. Shortly after that an unnamed officer was responsible for getting plaintiff to medical at which point he was evaluated and then transported by ambulance to the hospital where, among other things, it was determined he had an erratic heartbeat and had suffered damage to his heart. Id., at 5. He was later transported to another hospital for heart surgery. Id. Plaintiff seeks by his complaint both money damages and injunctive relief in the form enjoining defendants from refusing to provide emergency medical help to him. See Order at docket # 8, citing Complaint.

Defendants were ordered to respond to plaintiff's motion for preliminary injunctive relief within fourteen days. In doing so, the deputy attorney general posits that the response is a special appearance; that the court lacks personal jurisdiction over the defendants as no defendant has been served with process or waived personal service; that there is not a policy or practice for the court to enjoin; that the Federal Receiver appointed in the Plata*fn1 class action has implemented, system-wide, an "Urgent/Emergent protocol" which requires prison staff to take specific actions when an inmate needs emergency care; that plaintiff may not proceed on independent claims for injunctive relief regarding these procedures, and that plaintiff's in forma pauperis application is deficient. See Response, pp. 1-6.

Legal Standard

Temporary Restraining Order / Preliminary Injunction

The standards governing the issuance of temporary restraining orders are "substantially identical" to those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). Therefore, "[a] plaintiff seeking a [TRO] 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) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, ___, 129 S. Ct. 365, 374 (2008)). A preliminary injunction is appropriate when a plaintiff demonstrates . . . "serious questions going to the merits and a hardship balance [] tips sharply toward the plaintiff, ... assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 129 S. Ct. at 376.

The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, preliminary injunctive relief should be denied:

Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits."

Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984)).

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 ...


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