United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with this civil rights
action under 42 U.S.C. § 1983. He proceeds on his third
amended complaint (ECF No. 13), which asserts First Amendment
retaliation claims against defendants Oania, Casas, Tuers,
Hampton, Macomber, Lynch, and Jibson. Plaintiff moves for a
preliminary injunction based on his perceived breach of a
settlement agreement in Giraldes v. Hicombothem,
1:09-cv-0154-SKO, a case that is venued in Fresno and
concerns plaintiff's medical condition. He also requests
a stay of all proceedings. For the reasons stated below,
plaintiff's motions must be denied.
Motion for a Preliminary Injunction
plaintiff characterizes his motion, he seeks an order
compelling defendant Macomber "to cease his failure to
comply with the lawful and binding SETTLEMENT AGREEMENT that
mandates needed medical provisions, as have been continued
for the last six years, to protect plaintiff from irreparable
harm clearly documented by Giraldes v. Hicimbothem
and Giraldes v. Roche, the two settled cases that
prove what will happen to plaintiff by this courts failure to
protect him from further retaliation by defendants
agents." ECF No. 59 at 3.
preliminary injunction will not issue unless necessary to
prevent threatened injury that would impair the court's
ability to grant effective relief in a pending action.
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins.
Co., 871 F.2d 863 (9th Cir. 1989). A preliminary
injunction represents the exercise of a far reaching power
not to be indulged except in a case clearly warranting it.
Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143
(9th Cir. 1964). A party seeking preliminary injunctive
relief must demonstrate "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." Stormans, Inc. v. Selecky,
586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The
Ninth Circuit has also held that the "sliding
scale" approach it applies to preliminary
injunctions-that is, balancing the elements of the
preliminary injunction test, so that a stronger showing of
one element may offset a weaker showing of another-survives
Winter and continues to be valid. Alliance for
Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir.
2010). "In other words, ‘serious questions going
to the merits, ' and a hardship balance that tips sharply
toward the plaintiff can support issuance of an injunction,
assuming the other two elements of the Winter test are also
met." Id. 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. §
the complaint does not seek enforcement of or relate to the
terms of the Hicimbothem settlement agreement and
none of the defendants in this action were defendants in the
Hicimbothem action. This action does not currently
include a breach of contract claim, nor is it proceeding on
any claim concerning plaintiff's medical needs.
See ECF No. 13; see also Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994)
(explaining that an action regarding enforcement of a
settlement agreement sounds in contract). Thus, the current
motion for a preliminary injunction does not address
likelihood of success on the merits of this case or show how
serious questions are raised going to the merits of this
plaintiff has requested similar relief in the
Hicombothem action itself. See Giraldes v.
Hicombothem, 1:09-cv-0154-SKO, ECF Nos. 57, 58.
Magistrate Judge Oberto ordered the defendants in that action
to provide a response to plaintiff's motions, and those
defendants are better equipped to respond to plaintiff's
concerns regarding the terms of the Hicombothem
settlement agreement. See Hicombothem, ECF No. 59.
addition, plaintiff's motion fails to demonstrate that
issuance of the requested injunctive relief is in the
public's interest or that the balance of the equities
weighs in plaintiff's favor.
these reasons, plaintiff's motion for a preliminary
injunction should be denied.
Motion for a Stay
requests that this action be stayed because he "lost
over 12 pounds in less than three weeks, and [is] in too
extreem [sic] of pain to continue prosecuting this
case." ECF No. 58 at 1. According to plaintiff, he is
"physically unable to function beyond the most simple
things." Id. at 2. He argues that his
"physical incapacity warrents [sic] permanent STAY until
he is physically able to continue." Id. at
has not shown that he is physically unable to prosecute this
action. Rather, his filings in this and the
Hicombothem actions demonstrate his ability to
timely draft and file coherent documents with the court.
See, e.g., ECF No. 64 (plaintiff's May 25, 2016
"objections" to defendants' May 13, 2016
filing); Hicombothem, ECF No. 68-70 (plaintiff's
May 25, 2016 filings in response to defendants' May 13,
claimed need for an open-ended stay in this action is also
undermined by the declarations submitted in the
Hicombothem action, which demonstrate that plaintiff
is receiving more calories than is necessary for good health
and that he is receiving pain treatment at a safe and
effective level. According to A. Nicolai, the registered
dietician at California State Prison, Sacramento
("CSP-Sac"), medical staff discontinued some of
plaintiff's snacks and nutritional supplements because
plaintiff's body mass index put him in the overweight
range. ECF No. 62-4, Ex. 3 at 85-88, ¶¶ 1,
5-6. Plaintiff subsequently lost approximately fifteen pounds
over the course of two months. Id. ¶ 10. Since
then, an additional liquid nutritional supplement was
reinstated, and plaintiff began receiving frequent small
meals from the kitchen instead of just snacks. Id.
¶ 11, 13. According to the dietician, plaintiff is
currently receiving more calories than his nutritional needs
require. Id. ¶ 8.
plaintiff's reports of pain, M. Bobbala, the Acting Chief
Medical Executive at CSP-Sac, states that plaintiff exhibited
no objective withdrawal symptoms when his morphine dosage was
tapered in March of 2016, suggesting that plaintiff was never
ingesting all of the morphine provided to him. ECF No. 62-3,
Bobbala Decl. at 8-16, ¶¶ 10-16. In addition,
medical evaluations and observations do not corroborate
plaintiff's written complaints of pain. Id.