The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
In these related cases, currently set for a settlement conference before the Honorable Gregory G. Hollows on March 27, 2013, plaintiff filed a motion on January 24, 2013 for a temporary restraining order and preliminary injunction with respect to the defendants in Lucero v. Stanton, No. 2:12-cv-0146 LKK AC P. ECF No. 21. Pursuant to order of this court, ECF No. 23, defendants have filed an opposition to the motion and plaintiff has replied. ECF Nos. 24, 27.
Underlying Complaint in Case No. 12-cv-0146 Plaintiff was found not guilty of a criminal offense by reason of insanity, and was civilly committed to a state hospital pursuant to Cal. Pen. Code § 1026. Plaintiff claims that when he was housed at Solano County Jail (SCJ) in 2011, in relation to proceedings in Solano County Superior Court pursuant to Cal. Pen. Code § 1026.2 (regarding restoration to sanity), his conditions of confinement violated his constitutional rights. Complaint, pp. 1- 2. Magistrate Judge Delaney ordered service of the complaint on the following defendants: Solano County; Solano County Sheriff Gary Stanton; Solano County Commander Roderick Marsh; and Solano County Correctional Sergeants (or Officers) Margo Cullison and Tina Arcand. ECF No. 5.
Plaintiff alleges that defendants violated his Fourteenth Amendment due process and equal protection rights by (1) confining him in administrative segregation from July 18 to August 17, 2011, and (2) housing him in general population as a "prisoner" thereafter until his return to Atascadero State Hospital on November 9, 2011. Plaintiff contends that as a "civil commitment" he may not be treated as a criminally convicted "prisoner." He alleges that he was denied necessary mental health treatment and denied privileges to which he was entitled as a civil detainee. Plaintiff seeks declaratory and injunctive relief as well as an award of compensatory and punitive damages. Complaint, ECF No. 1.
California Statutory Scheme Governing Release Of Insanity Acquittees Cal. Pen. Code § 1026.2 sets forth the procedures to be followed when a person, committed to a state hospital following a verdict of not guilty by reason of insanity, applies for release on the ground that his sanity has been restored. An application for release is made to the superior court of the county from which the commitment was made, and a hearing is set. Cal. Pen. Code § 1026.2(a). Pending the hearing, the medical director of the facility where the person is confined forwards a summary of the treatment programs for the person to the community program director (or designee) and to the court. The community program director (or designee) must "designate a facility within a reasonable distance from the court in which the person may be detained pending the hearing on the application for release. The facility so designated shall continue the program of treatment, shall provide adequate security, and shall, to the greatest extent possible, minimize interference with the person's program of treatment." Cal. Pen. Code § 1026.2(b). At the hearing, the court determines whether supervision and treatment in the community would pose a danger to the health and safety of others. Cal. Pen. Code § 1026.2(e).
Defendants' Request for Judicial Notice Defendants request judicial notice of the state court's adjudication of petitioner's 2011 petition for restoration of sanity. The court hereby grants the request.*fn1 Defendants' Exhibit A is a certified copy of the Solano County Superior Court's October 31, 2011 order denying plaintiff's petition for release and determining him to be "a danger to the health and safety of others." Plaintiff was found not to have been restored to sanity and was ordered to be returned to Atascadero State Hospital, "pursuant to Penal Code section 1026 under the lifetime commitment order filed March 25, 2002." ECF No. 24-2.
By his motion for a temporary restraining order and preliminary injunction, plaintiff seeks an order requiring defendants to provide him with what he claims are appropriate accommodations during his anticipated and imminent return to SJC for further proceedings in superior court. In sum, plaintiff seeks a guarantee of mental health treatment and designation as a civil detainee. See Motion (ECF No. 21).
Plaintiff anticipates a return to SCJ because on January 9, 2013 he submitted a new petition for release under Cal. Pen. Code § 1026.2. He claims that once the petition is accepted and filed, his transfer to the custody of the defendants will be imminent. ECF No. 21. In his reply, plaintiff indicates that he is to be housed at SCJ as of February 25, 2013. ECF No. 27. He has not yet provided the court with a notice of change of address (pursuant to L.R. 182(f)) and does not provide evidence to substantiate that his transfer is either imminent or has taken place.
Standards Governing Issuance of Temporary Restraining Order
The purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary restraining order due to the fact that very few such orders can be appealed prior to the hearing on a preliminary injunction. It is apparent, however, that 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.*fn2 See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); 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). Courts frequently focus on irreparable harm and the balance of hardships, because the merits of a controversy are often difficult to ascertain and adjudicate on short notice.
Standards Governing Issuance of Preliminary Injunction "A preliminary injunction is an 'extraordinary and drastic remedy'. . . never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations omitted). "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) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (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).
The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, ...