United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATION
REGARDING PLAINTIFF'S EX PARTE EMERGENCY MOTION FOR A
TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION (ECF
No. 2) THIRTY (30) DAY DEADLINE
Joel Nunez is a state prisoner proceeding pro se and
in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's ex parte
emergency motion for a temporary restraining order and a
preliminary injunction, filed on May 17, 2019. (ECF No. 2.)
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 serve must
appear to defend.). Furthermore, the pendency of this action
does not give the Court jurisdiction over prison officials in
general. Summers v. Earth Island Inst., 555 U.S.
488, 491-93 (2009); Mayfield v. United States, 599
F.3d 964, 969 (9th Cir. 2010). The Court's jurisdiction
is limited to the parties in this action and to the viable
legal claims upon which this action is proceeding.
Summers, 555 U.S. at 491-93; Mayfield, 599
F.3d at 969.
temporary restraining order is an extraordinary measure of
relief that a federal court may impose without notice to the
adverse party if, in an affidavit or verified complaint, the
moving party “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.”
Fed.R.Civ.P. 65(b)(1)(A). The standard for issuing a
temporary restraining order is essentially the same as that
for issuing a preliminary injunction. Stuhlbarg Int'l
Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839
n.7 (9th Cir. 2001) (analysis for temporary restraining
orders and preliminary injunctions is “substantially
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citation 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.” Id. at 20 (citations omitted). An
injunction may only be awarded upon a clear showing that the
plaintiff is entitled to relief. Id. at 22 (citation
omitted). “Under Winter, plaintiffs must
establish that irreparable harm is likely, not just
possible, in order to obtain a preliminary injunction.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011).
for prospective relief are further limited by 18 U.S.C.
§ 3626(a)(1)(A) of the Prison Litigation Reform Act,
which requires that the Court find the “relief [sought]
is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
Federal right.” Section 3626(a)(2) also places
significant limits upon a court's power to grant
preliminary injunctive relief to inmates. “Section
3626(a) therefore operates simultaneously to restrict the
equity jurisdiction of federal courts and to protect the
bargaining power of prison administrators - no longer may
courts grant or approve relief that binds prison
administrators to do more than the constitutional
minimum.” Gilmore v. People of the State of
California, 220 F.3d 987, 999 (9th Cir. 2000).
motion, Plaintiff seeks a temporary restraining order and a
preliminary injunction restraining Defendants Diaz, Allison,
and Ndoh, and all persons acting on their behalf from merging
or mixing the Sensitive Needs Yard prisoners with the General
Population prisoners at Avenal State Prison.
initially, the Court notes that, on June 10, 2019, Plaintiff
filed a notice of change of address stating that, on May 28,
2019, he was transferred from Avenal State Prison to
California Medical Facility. (ECF No. 13.) Since Plaintiff
has been transferred from Avenal and has not presented the
Court with any evidence demonstrating that he has a
reasonable expectation of returning to Avenal State Prison,
his request for injunctive relief relating to the application
of the Non-Designated Programming Facilities
(“NDPF”) policy to Avenal State Prison is moot.
Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)
(per curiam); see also Andrews v.
Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007).
even if Plaintiff's request for injunctive relief is not
moot, Plaintiff has not made a sufficient showing to warrant
the granting of a temporary restraining order and a
preliminary injunction. First, Plaintiff filed this motion
along with his complaint and no defendant has been served
with process. Until one or more of the defendants have been
served with process, this Court lacks personal jurisdiction
over them, and may not grant the injunctive relief Plaintiff
requests. See Fed.R.Civ.P. 65(d)(2); Murphy
Bros., Inc., 526 U.S. at 350.
when the Court screened Plaintiff's complaint, the Court
found that Plaintiff failed to state any cognizable claim
upon which § 1983 relief can be granted. Therefore,
Plaintiff has necessarily failed to show, for purposes of
justifying preliminary injunctive relief, ...