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Donte Rolando Harris v. H. A. Rios

April 17, 2013

DONTE ROLANDO HARRIS,
PLAINTIFF,
v.
H. A. RIOS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

I. PROCEDURAL BACKGROUND AND OTHER INJUNCTIVE RELIEF

(ECF No. 80)

Plaintiff Donte Rolando Harris, a federal prisoner proceeding pro se, filed this civil rights action on April 27, 2009 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). (ECF No. 1.)

This action arose while Plaintiff was incarcerated at the Federal Correctional Institution - Atwater, California ("FCI Atwater") and proceeds on Plaintiff's Second Amended Complaint against Defendants Gonzaga, Cobb, Zaragoza, and Valero for interfering with incoming mail and against Defendant Cobb for interfering with outgoing mail in violation of Plaintiff's rights under the First Amendment; and against Defendants Estrada, Cobb, Valero, and Zaragoza for violating Plaintiff's Fourteenth Amendment due process rights in connection with his mail. Defendants filed their Answer on October 25, 2012. (ECF No. 69.) This matter is in the discovery phase.

Plaintiff propounded requests for admissions and production of documents in November 2012, and, receiving no responses, filed a Motion to Compel Discovery Dispute Resolution in January 2013. (ECF No. 74.) Counsel for Defendants filed opposition to the Motion stating the discovery responses had been served. (ECF No. 75.) Plaintiff then requested the Court dismiss his Motion. (ECF No. 76.) On February 22, 2013 the Court denied without prejudice Plaintiff's Motion to Compel Discovery Dispute Resolution. (ECF No. 77.)

Plaintiff, now incarcerated at the Federal Correctional Institution - Terre Haute, Indiana ("FCI Terre Haute") contends non-party Bureau of Prisons staff members K. Sierveld and T. Coleman, have not delivered the discovery responses and are improperly in contact with defense counsel in this action regarding "unauthorized content" in the discovery responses. (ECF No 81, at 1.)

Plaintiff filed Partial Objections (ECF No. 82) to the Court's February 22, 2013 Order on grounds BOP staff at FCI Terre Haute had not delivered the subject discovery responses to him. On March 18, 2013, the Court construed his Partial Objection as a motion for reconsideration and denied it. (ECF No. 83.)

Pending before the Court is Plaintiff's Motion for Temporary Restraining Order and Other Injunctive Relief filed on March 4, 2013. (ECF No. 80.) Therein Plaintiff seeks an order enjoining defense counsel from any further contact with K. Sierveld and T. Coleman and other BOP staff and requiring staff provide the discovery responses to him. Defendants have not filed any opposition. The time for doing so has expired. Local Rule 230(l).

II. LEGAL STANDARDS

Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008). To prevail, the party seeking injunctive relief must show either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [the moving party's] favor." Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); see City of Los Angeles v. Lyons, 461 U.S. 95, 101--102 (1983) (plaintiff must show "real and immediate" threat of injury).

Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act ("PLRA"), which requires that the court find the "relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right."

Injunctive relief should be used "sparingly, and only . . . in clear and plain case[s]." Rizzo v. ...


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