United States District Court, E.D. California
DAVID W. WILSON, Plaintiff,
ROBERT W. FOX, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, 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 for a protective order.
(ECF No. 19.) Though not entirely clear, it appears plaintiff
seeks an order directing staff members at California Medical
Facility (“CMF”) in Vacaville, California to
refrain from denying plaintiff equal access to programs, from
failing to properly heat his cells, from opening his
confidential mail, and from retaliating against him for
filing of grievances.
court construes plaintiff's motion for a protective order
as a motion for a temporary restraining order. 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.
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).
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.
8, 2017, the court screened plaintiff's complaint and
dismissed it with leave to amend for violating the joinder
requirement of Federal Rule of Civil Procedure 20. A first
amended complaint has not yet been filed. 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.”).
plaintiff seeks protection from CMF staff members. Plaintiff
has since been transferred to R.J. Donovan Correctional
Facility in San Diego, California. See ECF No. 19.
Absent facts to suggest that plaintiff will be transferred
back to CMF, any requests for injunctive relief as to CMF
staff members appear to be moot. See Preiser v.
Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v.
Moore, 948 F.2d 517, 519 (9th Cir. 1991); see also
Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir.
on the foregoing, IT IS HEREBY RECOMMENDED that plaintiffs
motion for a ...