United States District Court, E.D. California
MONICO J. QUIROGA, Plaintiff,
v.
TIMNOTHY KING, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S
REQUEST FOR A TEMPORARY RESTRAINING ORDER (ECF NO. 11)
FOURTEEN DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Monico J. Quiroga, a prisoner proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on November 9, 2015. (ECF No. 1.) He
brings his suit against Defendants Timothy King, C. Chapa, C.
Bernard, O. Fuentos, and Gauze, all agents of the Kern County
Sherriff’s Office, for claims arising while he was in
the custody of the Kern County Sherriff’s Office.
Plaintiff
has declined Magistrate Judge jurisdiction in this case. (ECF
No. 6.) No other parties have appeared in the action.
The
Court dismissed Plaintiff’s first civil rights
complaint on March 31, 2016 for failure to state a claim and
granted Plaintiff thirty days to file an amended complaint.
(ECF No. 14.) On April 21, 2016, Plaintiff filed a first
amended complaint. (ECF No. 17.) The Court dismissed
Plaintiff’s first amended complaint on May 6, 2016 for
failure to state a claim and granted Plaintiff a final
opportunity to amend. (ECF No. 18.) Plaintiff’s second
amended complaint is awaiting screening by the Court. (ECF
No. 20.) Before the Court is Plaintiff’s February 22,
2016 motion for a temporary restraining order. (ECF No. 11.)
I.
LEGAL STANDARD
The
purpose of a temporary restraining order is to preserve the
status quo before a preliminary injunction hearing may be
held; its provisional remedial nature is designed merely to
prevent irreparable loss of rights prior to judgment.
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil
Procedure 65, a temporary restraining order may be granted
only if “specific facts in an affidavit or verified
complaint clearly show 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
analysis for a temporary restraining order is substantially
identical to that for a preliminary injunction, Stuhlbarg
Intern. Sales Co., Inc. v. John D. Brush and Co., Inc.,
240 F.3d 832, 839 n.7 (9th Cir. 2001), and “[a]
preliminary injunction is an extraordinary remedy never
awarded as of right, ” Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation
omitted).
“A
preliminary injunction is an extraordinary remedy never
awarded as of right, ” Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation
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.” Id. at 20 (citations omitted).
Alternatively, a preliminary injunction may issue where the
plaintiff demonstrates the existence of serious questions
going to the merits and the 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). Under either formulation of the principles,
preliminary injunctive relief should be denied if the
probability of success on the merits is low. See Johnson
v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430
(9th Cir. 1995) (even if the balance of hardships tips
decidedly in favor of the moving party, it must be shown as
an irreducible minimum that there is a fair chance of success
on the merits).
An
injunction may only be awarded upon a clear showing
that the plaintiff is entitled to relief. Id. at 22
(citation omitted) (emphasis added). In addition, 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).
Finally,
a Plaintiff must establish that he has standing to seek
preliminary injunctive relief. Summers, 555 U.S. at
493 (citation omitted); Mayfield, 599 F.3d at 969.
Plaintiff “must show that he is under threat of
suffering an ‘injury in fact’ that is concrete
and particularized; the threat must be actual and imminent,
not conjectural or hypothetical; it must be fairly traceable
to challenged conduct of the defendant; and it must be likely
that a favorable judicial decision will prevent or redress
the injury.” Summers, 555 U.S. at 493
(citation omitted); Mayfield, 599 F.3d at 969.
II.
DISCUSSION
Here,
Plaintiff requests this Court issue an order directing
officers of the Kern County Sheriff’s Office to stay
away from Plaintiff. As Plaintiff was transferred to Wasco
State Prison as of June 10, 2016 (ECF No. 21) and has made no
showing that he is likely to be transferred back to the
custody of the Kern County Sherriff’s Office,
Plaintiff’s request is now moot. See Dilley v.
Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (An
inmate's release from prison while his claims are pending
generally will moot any claims for injunctive relief relating
to the prison’s policies.”); see also Preiser
v. Newkirk, 422 U.S. 395, 402–03 (1975);
Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991);
Darring v. Kincheloe, 783 F.2d 874, 876 (9th
Cir.1986).
The
Court will therefore recommend Plaintiff’s motion for a
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