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O'Con v. Katavich

United States District Court, E.D. California

May 8, 2014

TINA L. O'CON, Plaintiff,
v.
JOHN KATAVICH, Warden, et. al., Defendants.

ORDER DENYING PRELIMINARY INJUNCTION (Doc. 18)

ANTHONY W. ISHII, Senior District Judge.

I. Introduction

Plaintiff Tina L. O'Con ("Plaintiff") filed a complaint in forma pauperis in the U.S. District Court for the Central District of California[1] asserting several claims against Wasco State Prison ("WSP") officials pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff is not an inmate, her action arises from a visit to WSP.

Plaintiff now seeks an order, mandating the return of a pair of shoes and a television confiscated from her husband and enjoining Defendants and "unknown actor of the State" from intercepting her husband's legal and personal correspondence. For the following reasons, Plaintiff's application for preliminary injunction will be denied.

II. Background

The allegations of the Complaint all surround a visit by Plaintiff to her husband, Kevin Flemings ("Flemings"), at WSP wherein she was searched after prison officials concluded that she had provided contraband during visitation. The Honorable Magistrate Judge Sheila K. Oberto performed the required screening of Plaintiff's complaint and determined that only Plaintiff's first, second, fourth, and fifth grounds for relief stated a claim. (Doc. 6.) Those claims alleged: 1) unlawful arrest in violation of the Fourth Amendment against Defendant Pierce, 2) unlawful search of Plaintiff's purse, jacket, and person in violation of the Fourth Amendment against Defendant Correctional Officer Paul Pierce ("Pierce"); 4) unlawful strip search of Plaintiff in violation of the Fourth Amendment against Defendant Correctional Officer King-Eddington ("King-Eddington"); and 5) unlawful strip search of Plaintiff in violation of the Fourth Amendment against Defendant Correctional Officer Nickell ("Nickell"). (Doc. 6.) Plaintiff elected to proceed on those claims rather than to file an amended complaint. (Doc. 9.) This Court ordered all other claims dismissed from this action for failure to state a claim. (Doc. 10.)

The relevant facts relating to the viable claims are as follows: Plaintiff alleges that on August 11, 2012, she was visiting Flemings at Wasco State Prison in the A facility visiting room. (Doc. 1, ¶ 1, & p. 6.) During the visit, Defendant Correctional Officer Aagon Lucas ("Lucas") asserted that Flemings was secreting an unknown object in the back of Flemings' pants, and Lucas then escorted Flemings to the back office. (Doc. 1, ¶¶ 2-3.) At the same time, Pierce approached Plaintiff and instructed her to get up from the table where she had been seated with Flemings, and come with Pierce to the lobby outside the visiting room. (Doc. 1, ¶ 4.) Plaintiff complied with Pierce and waited in the outside lobby area of the visiting room. (Doc. 1, ¶ 5.) Pierce walked toward the women's restroom, and then immediately came back to the lobby where Plaintiff was seated and instructed Plaintiff to come with him to the room next door to the lobby where Pierce placed Plaintiff in hand restraints. (Doc. 1, ¶ 6.) Pierce then grabbed Plaintiff's purse and jacket from her hands and searched both. (Doc. 1, ¶ 7.) Pierce did not find any contraband during his search. (Doc. 1, ¶ 8.) Pierce began to question Plaintiff regarding what unknown object she had given to Flemings. (Doc. 1, ¶ 8.)

Plaintiff informed Pierce she had not given anything to Flemings, and Pierce proceeded to grab Plaintiff by her inner upper arm with his hand rubbing several times against Plaintiff's breast in the process. (Doc. 1, ¶ 9.) Pierce interrogated Plaintiff for approximately ten minutes. (Doc. 1, ¶ 10.) Plaintiff asked Pierce if she could be taken out of the hand restraints because they were too tight and cutting into her wrists, but Pierce refused to do so until Plaintiff "started talking." (Doc. 1, ¶ 11.) Plaintiff remained in the hand restraints until they were removed at the county jail. (Doc. 1, ¶ 11.)

Pierce then left Plaintiff for approximately 10 minutes, then returned and informed Plaintiff that Flemings had a cellular phone in his possession. (Doc. 1, ¶ 12.) At that time, King-Eddington and Lucas joined Plaintiff and Pierce in the room, and the three started questioning Plaintiff about her involvement in giving Flemings the cell phone and how she got the phone onto the prison grounds. (Doc. 1, ¶ 13.) After she denied any illegal activity, Pierce informed Plaintiff that she was going to be strip searched. (Doc. 1, ¶ 14.) Plaintiff responded that she refused to be strip searched, and Pierce responded that Plaintiff did not have any choice. (Doc. 1, ¶ 15.) Plaintiff was then escorted to the women's restroom by King-Eddington and Nickell, where Plaintiff was required to remove her clothes and she was searched. (Doc. 1, ¶ 16.) Plaintiff was forced to bend over, squat, and cough as Defendants used flashlights aimed at Plaintiff's genitals. King-Eddington knew that Plaintiff was legally disabled and walked with the aid of a cane. (Doc. 1, ¶ 16.)

No contraband was found during the course of the strip search, and the Plaintiff was placed back in hand restraints and escorted to the visiting office by King-Eddington and Nickell. Pierce remained with Plaintiff. (Doc. 1, ¶ 17.) Pierce then grabbed Plaintiff by her inner upper arm, and his hand brushed up against Plaintiff's breast. Pierce escorted Plaintiff to a waiting patrol car outside and placed Plaintiff in the back seat. (Doc. 1, ¶ 18.) Pierce and Lucas sat in the front seat of the patrol car, and they proceeded to drive to Plaintiff's parked car. (Doc. 1, ¶ 20.) Pierce used Plaintiff's keys to open her car and search for contraband. (Doc. 1, ¶ 22.) Pierce then picked up Plaintiff's cell phone, turned it on, and looked through the contents on the phone, including text messages. (Doc. 1, ¶ 22.) Lucas asked Plaintiff if she wished to use the restroom before they left for the county facility, and Plaintiff stated she did. (Doc. 1, ¶ 23.) Lucas escorted Plaintiff to the women's restroom and then escorted Plaintiff back to the patrol car where she was placed in the backseat. (Doc. 1, ¶ 23.)

Once placed back in the patrol car, Plaintiff was driven to the women's county facility where she was booked for a felony violation. (Doc. 1, ¶ 24.)

III. Legal Standard

The purpose of a preliminary injunction or temporary restraining order is to preserve the status quo if the balance of equities so heavily favors the moving party that justice requires the court to intervene to secure the positions until the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is an "extraordinary and drastic remedy" that is "never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted). Instead, in every case, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 23 (2008) (internal quotation marks and citation omitted). The instant motion requires that the court determine whether Plaintiff has established the following: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Id. at 20 (citations omitted).

Before Winter, courts in the Ninth Circuit applied an alternative "sliding-scale" test for issuing a preliminary injunction that allowed the movant to offset the weakness of a showing on one factor with the strength of another. See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). In Winter, the Supreme Court did not directly address the continued validity of the Ninth Circuit's sliding-scale approach to preliminary injunctions. See Winter, 555 U.S. at 51 (Ginsburg, J., dissenting: "[C]ourts have evaluated claims for equitable relief on a 2017sliding scale, ' sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high... This Court has never rejected that formulation, and I do not believe it does so today."); see also Alliance, 632 F.3d at 1131. Instead, the portion of the sliding-scale test that allowed injunctive relief upon the possibility, as opposed to likelihood, of irreparable injury to the plaintiff, was expressly overruled by Winter. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.2009). The Ninth Circuit has since found that post- Winter, this circuit's sliding-scale approach, or "serious questions" test "survives... when ...


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