United States District Court, E.D. California
ORDER TO CLERK OF COURT TO ASSIGN A DISTRICT JUDGE;
AND FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S
REQUEST FOR INJUNCTIVE RELIEF (ECF NO. 5)
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in a civil rights action pursuant to 42 U.S.C. § 1983.
No other parties have appeared in this action.
the Court is Plaintiff's motion seeking injunctive
relief. (ECF No. 5.) Though not entirely clear, it appears
Plaintiff seeks protection from unspecified correctional
staff who are retaliating against him for the filing of this
action. Plaintiff also claims that he is being denied the
opportunity to exhaust his administrative remedies.
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.
standard for issuing a temporary restraining order is
identical to the standard for a preliminary injunction.
See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush
& Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
A preliminary injunction is an extraordinary and drastic
remedy, never awarded as of right. Munaf v. Geren,
553 U.S. 674, 689-90 (2008) (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. Winter v. Natural
Res. Def. Council, 555 U.S. 7, 20 (2008). 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).
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.
January 9, 2017, the Court screened Plaintiff's complaint
and dismissed it with leave to amend in light of
Plaintiff's admission that he did not exhaust his
administrative remedies prior to filing suit. Plaintiff has
recently been granted an extension of time to file an amended
pleading. Thus, at this stage of the proceedings, there is no
operative pleading. The Court therefore cannot opine that
Plaintiff is likely to succeed on the merits of his claims.
no Defendants have yet appeared in this action, and the Court
does not have jurisdiction to order injunctive relief which
would require directing parties not before the Court to take
action. Zepeda v. United States Immigration &
Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985)
(“A federal court may issue an injunction if it has
personal jurisdiction over the parties and subject matter
jurisdiction over the claim; it may not attempt to determine
the rights of persons not before the court.”).
on the foregoing, IT IS HEREBY ORDERED that a district judge
be assigned to this case; and
HEREBY RECOMMENDED that Plaintiff's request for
injunctive relief (ECF No. 5) be DENIED.
findings and recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with the findings and
recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to
file objections within the specified time may result in the