United States District Court, E.D. California
ORDER and FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42 U.S.C. § 1983. On June 29, 2015, plaintiff filed a motion for temporary restraining order and preliminary injunction. Plaintiff contends that he has an upcoming parole hearing on October 8, 2015, and argues that if the rules violation report ("RVR") at issue is allowed to be among the factors considered at such hearing, the Board could set his next parole consideration hearing from three to 15 years from now. As set forth below, the undersigned recommends that plaintiff's motion be denied, but finds that in light of the delays in addressing plaintiff's claims, a more expedited scheduling of the case may be warranted.
On December 6, 2013, this action was removed from San Joaquin County Superior Court. (ECF No. 1.) Defendants waived personal service of summons on August 7, 2014, and on September 8, 2014, filed a motion to stay. (ECF Nos. 21, 22.) On March 11, 2015, this action was stayed pending resolution of plaintiff's petition for writ of habeas corpus in Wheeler v. Price, Case No. 2:14-cv-0521 MCE KJN (E.D. Cal.). (ECF No. 28.) On May 28, 2015, the Court of Appeals for the Ninth Circuit clarified that claims challenging prison disciplinary proceedings are cognizable in habeas only if such claims would necessarily spell speedier release. Nettles v. Grounds, 2015 WL 3406160, at *1 (9th Cir. May 28, 2015). Thus, the undersigned recommended that plaintiff's habeas petition be dismissed for lack of habeas jurisdiction. Price, 2:14-cv-0521 MCE KJN (ECF No. 21). On June 18, 2015, the stay in the instant action was lifted, and defendants were directed to file a responsive pleading within thirty days. (ECF No. 29.) On June 29, 2015, plaintiff filed the instant motion.
Plaintiff is serving a sentence of life with the possibility of parole based on his conviction for kidnap for the purpose of robbery and robbery. The inmate locator website for the California Department of Corrections and Rehabilitation ("CDCR") reflects that he was admitted to CDCR custody on August 31, 1982. Plaintiff has had at least two parole consideration hearings, one in March of 2007, and another on November 15, 2012, at which it appears he stipulated to a three year continuance of the hearing. Price, Case No. 2:14-cv-0521 MCE KJN (ECF No. 10 at 4-5.)
On January 23, 2012, plaintiff received an RVR, Log #12-03-35-P-4, for introduction of dangerous contraband to a state prison - possession of cell phones. He was found guilty of the RVR and assessed a 90 day loss of credit. In the second amended complaint, plaintiff alleges that defendants Vivero and Cano violated plaintiff's procedural due process rights in connection with the RVR hearing held on April 3, 2012.
III. Standards for Injunctive Relief
Plaintiff seeks a temporary restraining order. A temporary restraining order is an extraordinary and temporary "fix" that the court may issue without notice to the adverse party if, in an affidavit or verified complaint, the movant "clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The purpose of a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed.R.Civ.P. 65. It is the practice of this district to construe a motion for temporary restraining order as a motion for preliminary injunction. Local Rule 231(a); see also Aiello v. OneWest Bank, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) ("Temporary restraining orders are governed by the same standard applicable to preliminary injunctions.") (internal quotation and citations omitted).
The party requesting preliminary injunctive relief must show 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." Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the plaintiff demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the public interest, a preliminary injunction may issue so long as serious questions going to the merits of the case are raised and the balance of hardships tips sharply in plaintiff's favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after Winter).
The principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision after a trial on the merits. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2947 (3d ed. 2014). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claims raised in the injunction when the action is brought to trial. 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).
A. Success on ...