FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. His sole remaining claim is against defendant Friedrichs for alleged violations of plaintiff's Eighth Amendment rights. See Dckt. No. 22. Presently before the court are plaintiff's motion for a temporary restraining order and defendant's motion for summary judgment. Dckt Nos. 66, 68. For the reasons that follow, plaintiff's motion for a temporary restraining order should be denied and defendant's motion for summary judgment should be granted.
This action proceeds on the second amended complaint filed December
26, 2007. Dckt. No. 14. Plaintiff alleges that, on November 18, 2005,
defendant Friedrichs lifted a "medical
hold" that had been placed on plaintiff. Dckt. No. 14 at 5.*fn1
With the hold lifted, plaintiff was transferred from Soledad
State Prison ("Soledad") to Folsom State Prison ("Folsom"). Id.
According to plaintiff, at the time of the transfer, he had a pending
appointment for lumbar fusion surgery. Id. Plaintiff claims that, by
lifting the medical hold thereby clearing the way for plaintiff's
transfer, defendant delayed plaintiff's necessary back surgery,
causing him injury. Id.
The court dismissed plaintiff's amended complaint on screening for failure to state a claim, but the U.S. Court of Appeals for the Ninth Circuit reversed as to plaintiff's claim against defendant Friedrichs. Dckt. Nos. 15, 17, 22. The undersigned then recommended that the court enter summary judgment in defendant's favor after concluding that plaintiff had not proffered evidence that the surgery was delayed or that he was injured by any delay. Dckt. No. 61 at 5-6. The district judge declined to adopt that recommendation, finding that it was defendant's burden to show that the surgery had not been delayed, that defendant had not discharged that burden, and that plaintiff had proffered evidence through his declaration that the delay caused him nerve injury. Dckt. No. 63 at 2. Defendant then sought leave to file a second summary judgment motion, which the court granted.
II. Plaintiff's Motion for a Temporary Restraining Order
Plaintiff has filed a motion for a temporary restraining order alleging that non-party Miranda has deprived him of a cane and "ADA vest" in retaliation for plaintiff's filing of an inmate appeal, "medical forms," and two lawsuits. Dckt. No. 66. Plaintiff also alleges that he "is unable to get any copys [sic] due to lock down, and the law library is only open 3 days here at High Desert State Prison." Id. Presumably, plaintiff seeks an order directing Miranda or other prison staff to return his cane and vest and allow him to make copies and/or visit the law library more frequently.
Plaintiff has not addressed the applicable standard for granting a temporary restraining order. His factual allegations are outside the scope of this case and simply do not pertain to merits in this action or bear on whether he is likely to prevail in this case. Nor do his allegations in the motion relate to persons who are parties to this action (nor is there any indication that they are defendant's officers, agents, servants, employees, attorneys, or are acting in concert with defendant). Fed. R. Civ. P. 65(d) (providing that an injunction binds the parties; the parties' officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with these people); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1985) ("A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.").
Requests for temporary restraining orders which are not ex parte and without notice are governed by the same general standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990).
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 order 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., __ U.S. __, 129 S.Ct. 365, 374 (2008)). The Ninth Circuit has also held that "sliding scale" approach it applies for the showing that must be made regarding the chance of success on the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, __ F.3d __, 2010 WL 2926463, *3-4 (filed July 28, 2010). Under this sliding scale the elements of the preliminary injunction test are balanced. As it relates to the merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. 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).
Plaintiff's motion presents nothing to indicate probability of success on the merits of his case, or what harm he faces from his current inability to make copies or access the library only three days per week. Nor has he shown that the balance of equities tips in his favor, and that an injunction is in the public interest. Accordingly, the motion for a temporary restraining order will should be denied.
III. Defendant's Motion for Summary Judgment
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, ...