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Howard v. Williamson

United States District Court, E.D. California

June 21, 2017

GREGORY E. HOWARD, Plaintiff,
v.
S. WILLIAMSON, et al., Defendants.

          ORDER AND FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This action proceeds on plaintiff's claims that on November 1, 2013, defendants Williamson, Molten, and Bookout used excessive force, in violation of the Eighth Amendment, while plaintiff was on the ground. (ECF No. 6 at 2.) On March 7, 2017, defendants filed a motion for summary judgment on the grounds that this action is time-barred and plaintiff failed to first exhaust his administrative remedies. Plaintiff seeks a second, sixty-day extension of time in which to oppose the motion. In addition, plaintiff filed a document styled, “Order to Show Cause for a Preliminary Injunction and Temporary Restraining Order, ” which the court construes as a motion for injunctive relief. For the reasons set forth below, the undersigned recommends that the motion for injunctive relief be denied, and grants plaintiff's requests for extension of time.

         II. Motion for Injunctive Relief

         The court first addresses plaintiff's motion for injunctive relief.

         A. Legal Standards

         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.” See 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 generally, Fed.R.Civ.P. 65; see also L. R. 231(a). 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, e.g., Aiello v. OneWest Bank, 2010 WL 406092, *1 (E.D. Cal. 2010) (providing that “‘[t]emporary restraining orders are governed by the same standard applicable to preliminary injunctions'”) (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 Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). The Ninth Circuit has held that, even if the moving party cannot show a likelihood of success on the merits, injunctive relief may issue if “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation omitted). 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. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (“‘[E]ven 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.'” (quoting Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984)).

         In addition, as a general rule this court is unable to issue an order against individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969). A federal district court may issue emergency injunctive relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure stating the time within which the party served must appear to defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action, ” their “officers, agents, servants, employees, and attorneys, ” and “other persons who are in active concert or participation.” Fed.R.Civ.P. 65(d)(2)(A)-(C).

         B. Plaintiff's Allegations

         Plaintiff initially seeks an order against defendants Williamson, Molten, and Bookout, and nonparties Warden Baughnan, Officers Queet, Clough, Garcia, Hanre, “and others within their official and individual capacities, ” and the “CCPOA[1] Guards Union.” (ECF No. 25 at 1.) Plaintiff claims that during the pendency of these proceedings, he has suffered numerous personal injuries, and denied medical care, pain medication, an MRI, and referral to an outside specialist. (ECF No. 25 at 2.) Plaintiff sets forth the following examples:

         1. “Overcrowded, unsafe, or extremely harsh conditions.” Plaintiff's single cell status was revoked on September 25, 2012. On January 3, 2013, plaintiff was a victim of in cell violence with weapons and suffered bite marks on his chest and arms.

         2. “Unnecessary Excessive Use of Force.” On November 1, 2017 [sic], plaintiff suffered dislocated shoulders, permanent eye damage, blurred vision, left wrist bone taken out of socket, and spinal cord bent, causing extreme lower back pains, from which he suffers when he lays down, sits or stands for too long, causing “irreparable injury.” (ECF No. 25 at 2.)

         3. “Inadequate medical care.” Plaintiff claims that Dr. Ma, Dr. Hamkar and “other medical officials” ...


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