United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court is plaintiff's May 2, 2019 motion for
emergency injunctive relief. (ECF No. 10.) For the reasons
stated herein, plaintiff's motion for emergency
injunctive relief should be denied. Legal Standard
Under Federal Rule of Civil Procedure 65, a court may issue a
temporary restraining order when the moving party provides
specific facts showing that immediate and irreparable injury,
loss, or damage will result before the adverse party's
opposition to a motion for preliminary injunction can be
heard. Fed.R.Civ.P. 65. “Injunctive relief is an
extraordinary remedy and it will not be granted absent a
showing of probable success on the merits and the possibility
of irreparable injury should it not be granted.”
Shelton v. Nat'l Collegiate Athletic Assoc., 539
F.2d 1197, 1199 (9th Cir. 1976). “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.”
Estes v. Gaston, 2012 WL 5839490, at *2 (D. Nev.
Nov. 16, 2012); see also Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).
This
court must consider the following elements in determining
whether to issue a temporary restraining order and
preliminary injunction: (1) a likelihood of success on the
merits; (2) likelihood of irreparable injury if preliminary
relief is not granted; (3) balance of hardships; and (4)
advancement of the public interest. Winter v.
N.R.D.C., 555 U.S. 7, 20 (2008); Stanley v. Univ. of
S. California, 13 F.3d 1313, 1319 (9th Cir. 1994);
Fed.R.Civ.P. 65 (governing both temporary restraining orders
and preliminary injunctions).
Discussion
On May
1, 2019, the undersigned dismissed plaintiff's complaint
with leave to amend. (ECF No. 7.) On May 2, 2019, plaintiff
filed the pending motion. (ECF No. 10.) On May 8, 2019, the
undersigned directed Supervising Deputy Attorney General
Monica Anderson to file a response to the pending motion.
(ECF No. 11.) On May 13, 2019, plaintiff filed an amended
complaint. (ECF No. 13.) On May 15, 2019, the Office of the
Attorney General filed a response to the pending motion. (ECF
No. 14.) The undersigned separately ordered service of the
amended complaint. (ECF Nos. 17, 21.)
In the
pending motion, plaintiff alleges that he is housed at Mule
Creek State Prison (“MCSP”). Plaintiff alleges
that he uses a CPAP machine due to sleep apnea. Plaintiff
alleges that doctors have ordered that he have access to
continuous electrical power for his CPAP machine. Plaintiff
alleges that MCSP has experienced power outages which caused
his CPAP machine to stop working while he was sleeping. In a
health care request form attached to the motion, dated March
26, 2019, plaintiff writes that the power went out at 3:30
a.m. and he stopped breathing when his CPAP machine stopped
working.
Attached
to the motion is a memorandum informing inmates that MCSP
will experience power interruptions from Friday April 12,
2019, through Monday April 15, 2019. Plaintiff alleges that
this memorandum does not contain information regarding
accommodations for inmates, like plaintiff, who require
access to continuous power. In the pending motion plaintiff
requests that defendants be ordered to provide him with
continuous power for his CPAP machine.
In the
May 15, 2019 response to plaintiff's pending motion, the
Office of the Attorney General provided the declaration of
MCSP Litigation Coordinator J. Austin. (ECF No. 14.) In
relevant part, J. Austin states that the Office of the
Attorney General asked him to confirm whether plaintiff's
housing unit experienced any power disruptions between April
12, 2019, to April 15, 2019; whether there were any upcoming
maintenance sessions that would cause further power
disruptions to plaintiff's housing unit; and whether
plaintiff had access to electrical outlets in his cell.
J.
Austin states that plaintiff's housing unit is a
dormitory-style cell that plaintiff shares with five other
inmates. (Id. at 2.) Twelve electrical outlets are
in the cell, each inmate is assigned two electrical outlets
next to their bed, and all twelve outlets are in working
condition. (Id.)
J.
Austin states that Correctional Plan Supervisor A. Orta
informed him that between April 12, 2019, and April 15, 2019,
plaintiff's dormitory experienced brief power outages due
to scheduled maintenance. (Id.) On each of those
four days, electrical power for plaintiff's dormitory was
shut down for approximately twenty minutes at 0600 hours (6
a.m.), and for another twenty minutes at 1900 hours (7 p.m.).
(Id.) Orta informed J. Austin that plaintiff's
dormitory currently has electrical power and that there are
no other power outages currently scheduled for
plaintiff's dormitory. (Id.)
After
reviewing J. Austin's declaration, the undersigned finds
that plaintiff has not shown that he is likely to suffer
irreparable injury if preliminary relief is not granted.
According to J. Austin, there are not power outages currently
scheduled for plaintiff's dormitory. The power outages
that occurred in plaintiff's dormitory between April 12,
2019, and April 15, 2019 occurred during times that it is
unlikely plaintiff would be sleeping, i.e., using his CPAP
machine. J. Austin states that the electrical outset in
plaintiff's dormitory are in working order.
While
plaintiff claims that his CPAP machine stopped working at
3:30 a.m. on or around March 26, 2019, the declaration of J.
Austin demonstrates that it is unlikely that plaintiffs
dormitory will experience power outages in the near future at
times that plaintiff is sleeping. Because it is not likely
that plaintiff will suffer an irreparable injury if the court
does not grant injunctive relief, plaintiffs motion for
emergency injunctive relief should be denied. However, if
plaintiffs dormitory experiences further power outages at
times plaintiff is sleeping, plaintiff shall notify the
court.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of the Court is directed
to assign a ...