United States District Court, S.D. California
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING
Barry Ted Moskowitz, Chief Judge United States District Court
Murschel (“Plaintiff”), a prisoner incarcerated
the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California, and
proceeding pro se, has filed a civil rights complaint
(“Compl.”) pursuant to 42 U.S.C. § 1983.
(See ECF No. 1.) Plaintiff has also filed Motion for
a Temporary Restraining Order (“TRO”) and
Preliminary Injunction (ECF No. 3).
Court has granted Plaintiff in forma pauperis
(“IFP”) status but has not yet conducted the
required sua sponte screening of Plaintiff's Complaint
pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A.
While the Court has not made the determination whether
Plaintiff has stated claims against the named Defendants that
survive the sua sponte screening process, the Court ordered
Defendants to respond to Plaintiff's Motion for a TRO or
Preliminary Injunction. On June 23, 2017, Defendant Paramo
filed a response to Plaintiff's Motion through counsel
specially appearing on his behalf. (ECF No. 8.)
Motion for Restraining Order
has filed a “Motion for a Temporary Restraining Order
and Preliminary Injunction” pursuant to Fed.R.Civ.P.
65. (ECF No. 3.) Plaintiff seeks an order “to ensure
that he is not transferred out of Richard J. Donovan
Correctional Facility.” (Id. at 1.) Plaintiff
claims that Defendants are retaliating against him for filing
this lawsuit by “recommending that the Plaintiff be
transferred out of [R]D] to another institution [in] Northern
California.” (Id. at 3-4.) Plaintiff further
claims that this transfer will “significantly put his
life on danger or risk of serious harm or injury.”
(Id. at 4.)
standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary
injunction.” Lockheed Missile & Space Co., Inc.
v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.
Cal. 1995); see also Stuhlbarg Intern. Sales Co., Inc. v.
John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th
Cir. 2001) (standards for issuing a TRO are
“substantially identical” to those for issuing a
preliminary injunction). A plaintiff seeking a preliminary
injunction must establish: (1) a likelihood of succeed on the
merits; (2) a likelihood that plaintiff will suffer
irreparable harm in the absence of preliminary relief; (3)
that the balance of equities tips in his favor; and (4) that
an injunction is in the public interest. Winter v.
Natural Res. Def. Council, 555 U.S. 7, 20 (2008).
stated above, Defendant Paramo has filed a response in
opposition to Plaintiff's request. (ECF No. 8.) In
support of the opposition, Defendant Paramo has supplied the
declaration of J. Homer, along with the declaration of C.
Weathersbee. (ECF Nos. 8-1, 8-2.)
claims he was told by “Correctional Counselor John
Doe” in April of 2017 that he “will appear to the
Institution Classification Committee” who will
“recommend that Plaintiff be transferred out of [R]D]
E.P.P. level of care SNY yard to Northern California State
Prison Level II or III which houses inmates in dorms.”
(Pl.'s Mot. at 6.) Plaintiff objects to this
“transfer recommendation on the basis of health issues,
family ties and safety concerns.” (Id.)
Plaintiff maintains that this transfer will “seriously
threaten Plaintiff's life, health and safety and that it
will be against his will.” (Id.)
argues that Plaintiff is simply not entitled to relief
because “he is not scheduled to be transferred
from RJD.” (Def.'s Opp'n, ECF No. 8, at 2.)
(emphasis in original.) In support of this statement,
Homer's declaration, signed under penalty of perjury,
indicates that Homer is a Correctional Counselor II and he is
“familiar with the policies and procedures of CDCR and
RJD regarding the assignments of an inmate's housing
classification status, and an inmate's transfers between
CDCR institutions.” (Homer Decl. at ¶ 2.) As a
Correctional Counselor, Homer has access to “each
inmate's records at RJD regarding their current
classification status and any pending transfers to other CDCR
review of Plaintiff's file indicates that he is
“not currently recommended or scheduled to be
transferred from RJD.” (Id. at ¶ 3(a)).
On February 27, 2017, a “special committee” did
recommend that Plaintiff be “transferred to a
lower-level facility than RJD, which is a high-security Level
IV facility.” (Id. at ¶ 3(b)). The
committee then recommended a transfer to Mule Creek State
Prison (“MCSP”) which is a lower level security
institution. (Id.) However, on March 16, 2017, a
“Correctional Counselor III” did not “adopt
the Committee's recommendation” in part because
there was “no bed space available” at a lower
level institution. (Id. at ¶ 3(c)). Therefore a
“CDCR Form 128-G” was issued which
“endors[ed] inmate Murschel to be retained at
RJD.” (Id.; Ex. 2, Auditor Action dated Mar.
16, 2017.) It is further noted that Plaintiff is currently
housed in RJD's “Enhanced Out Patient
(“EOP”) Special Needs Yard
(“SNY”).” (Id. at ¶ 3(d)).
Weathersbee, Litigation Coordinator for MCSP, declares that
MSCP “has had “Enhanced Out Patient/Special Needs
Yards for Level II and Level III inmates” for at least
the past six months. (Weathersbee Decl. at ¶ 2.)
order to meet the “irreparable harm” requirement,
Plaintiff must do more than simply allege imminent
harm; he must demonstrate it. Caribbean Marine Servs.
Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir.
1988). This requires Plaintiff to demonstrate by specific
facts that he faces a credible threat of immediate and
irreparable harm, unless an injunction issues. Fed.R.Civ.P.
65(b). “Speculative injury does not constitute
irreparable injury sufficient to warrant granting a
preliminary injunction.” Caribbean Marine, 844
F.2d at 674-75.
the Court finds that Plaintiff has failed to establish the
imminent irreparable harm required to support a preliminary
injunction. See Winter, 555 U.S. at 20; Alliance
for the Wild Rockies, 632 F.3d at 1131. Plaintiff must
establish that the threat of future injury is both
“real and immediate, ” not just
“conjectural” or “hypothetical.”
City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983). The only basis for his request is what Plaintiff was
allegedly told by a “John Doe” correctional
counselor regarding a “recommendation” that will
be made by unidentified individuals on a committee at some
future point in time. Plaintiff does not know which prison is
being recommended and assumes he will be housed in a dorm
setting. Plaintiff provides no documentation in support of
any of his claims. Defendant Paramo has set forth verified
declarations, along with documentation, that demonstrate that
Plaintiff is not currently scheduled to be transferred.
Moreover, even when a transfer was considered, it did not go
forward because the institution recommended did not have the
facilities available to accommodate Plaintiff's various
housing and medical needs.
Plaintiff does not have a constitutional right to be housed
in the institution of his choice. See Olim v.
Wakinekona,461 U.S. 238, 249 (1983); McKune v.
Lile,536 U.S. 24, 39 (2002) (“It is well settled
that the decision where to ...