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Nunez v. Diaz

United States District Court, E.D. California

August 30, 2019

JOEL NUNEZ, Plaintiff,
v.
RALPH DIAZ, et al., Defendants.

          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

         Plaintiff 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.

         Currently 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.)

         I.

         LEGAL STANDARDS

         Procedurally, 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.

         A 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 identical”).

         “A 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).

         Requests 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).

         II.

         DISCUSSION

         In his 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.

         However, 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).

         Further, 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.

         Second, 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, ...


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