JEFFREY E. WALKER, Plaintiff,
MOHADJER, Clinical Psychologist, et al., Defendants.
ORDER & FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
On January 7, 2014, plaintiff's recent motion for a TRO or preliminary injunction was denied. ECF No. 50. Evidently, this denial has crossed in the mail with yet another request for immediate injunctive relief, filed on January 10, 2013. ECF No. 51. Plaintiff continues his pattern of repeatedly filing of deficient motions for immediate injunctive relief, recounting in each filing the most recent events related to his housing and classification status.
In his latest "urgent" request, plaintiff apparently seeks to update his prior request wherein, inter alia, he claimed to be the victim of retaliation for filing lawsuits (including the instant one). Plaintiff includes a copy of a lockup order dated July 15, 2013 [sic], in which it is stated that plaintiff on July 5, 2013 was being placed in Administrative Segregation at California Medical Facility (CMF) due to the safety concerns of C. Mohadjer and Cain-Mathis (two of the defendants named in the operative second amended complaint) which arose in relation to plaintiff's alleged disruptive behavior on June 26, 2013. ECF No. 51 at 10. The order also references plaintiff's having yelled angrily at Mohadjer and unnamed custody staff on June 28, 2013. Id . Plaintiff now avers that defendant Mohadjer told him that she never expressed safety concerns about him or told custody staff (non-parties Sgt. Swann and Lt. Torez) who authorized the lockup that plaintiff ever yelled at her, and that has been documented in plaintiff's mental health records in the presence of Dr. Reyes (non-party) a week and a half ago. Thus, plaintiff contends the lock-up order has been "falsified."
Plaintiff also includes a copy of an Institutional Classification Committee (ICC) review (stamped July 25, 2013), which plaintiff states shows that an investigation resulted in no finding that a threat was made. However, the committee decision actually reads:
Subject became increasingly disruptive and threatening i[n] his behavior during his visits to the U-wing Clinic, which resulted in a possible staff safety concern. Committee is in possession of CDC-128B's authored by LPT V. Cain-Mathis and Dr. Mohadjer. After reviewing these documents, it is very clear that Subject was quite disruptive in his actions with staff in the U-wing clinic; however, committee sees no overt threat towards staff, nor any other reason to conclude that a realistic threat to their safety exists. In discussing the matter with Ms. Cain-Mathis, she indicated that she was agreeable to Subject being released from ASU as long as he wasn't housed back in Unit IV (as Subject has received a level of carechange to EOP, he would not be housed in Unit IV). During the course of today's committee, a confidential memorandum was discovered that had just been scanned into ERMS. This memorandum outlined an investigation into Subject's allegations of staff sexual misconduct. While the result of the investigation yielded no corroborating evidence or information, it was agreed that Subject should remain in ASU and be referred for transfer. A new CDC-114 D shall therefore be issued and Subject will be returned to ICC in one week for transfer consideration. ICC ACTS TO RETAIN IN ASU DUE TO ALLEGATIONS OF STAFF MISCONDUCT. SET MAX R CUSTODY AND WG/PG D1/D EFFECTIVE 7/5/13. ISSUE NEW CDC-114D AND RETURN TO ICC IN ONE WEEK.
Plaintiff then asserts that he was "on mainline" for nearly two months from July 2013 to September 2013, when defendant Cain-Mathis and non-parties Swann and Torez conspired on September 12, 2013 to use illegitimate safety concerns "to get rid of plaintiff." ECF No. 51 at 2-3. Plaintiff includes a copy of a CDC 128-B chrono dated September 12, 2013 in which defendant Cain-Mathis expresses her safety concern with regard to plaintiff's housing and also states her concern for Dr. Mohadjer then on maternity leave. Id. at 14.
Plaintiff's final exhibit is a copy of an ICC ASU review stamped October 23, 2013 indicating that plaintiff had been placed in ASU after his discharge from the Mental Health Crisis Bed (MHCB) on September 18, 2013. Id. at 16. Following plaintiff's subsequent return to MHCB, plaintiff was returned to the ASU with the EOP level of care, rendering prior transfer recommendations inappropriate. After the committee's review of defendant Cain-Mathis' September 2013 CDC-128B, the ICC found her concerns "sincere" and determined that plaintiff should not be returned to CMF's general population based on concerns of staff safety. He was to be retained in non-disciplinary segregation status. It was noted that he "is deemed Limited Duty with High Medical Risk" and "requires adaptive equipment." Plaintiff was referred for an adverse transfer to LAC-IV EOP-270 PSYCH O/R. Id.
Plaintiff asks the court to order defendant Cain-Mathis to show cause why she feels threatened by plaintiff. He asks the court to see to it that he receive all reports from the investigation of the U-wing incident. Id. at 3. He asks the court to have defendant Cain-Mathis reassigned elsewhere if she feels threatened. Plaintiff alleges that he is being put up for transfer to RJ Donovan, far from home based on false information. Id. at 3-5.
Standards Governing Issuance of a Temporary Restraining Order
The purpose in issuing 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. 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). In many cases the emphasis of the court is directed to 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 a 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 Assn, 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, 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 ...