United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding in forma pauperis and without
counsel in an action brought under 42 U.S.C. § 1983. He
has filed a “motion for immediate injunction”
wherein he requests that the court order prison officials to
return a typewriter that they confiscated. ECF No. 36. He
claims that an injury – ostensibly the one to his right
hand at issue in this litigation – renders it difficult
for him to “write more than two pages without suffering
severe pain in the wrist and fingers . . . .”
Id. at 1. For the reasons stated hereafter, it is
recommended that the motion be denied.
preliminary injunction represents the exercise of a
far-reaching power not to be indulged except in a case
clearly warranting it. Dymo Indus. v. Tapeprinter,
Inc., 326 F.2d 141, 143 (9th Cir. 1964). To be entitled
to preliminary injunctive relief, a party must demonstrate
“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.” Stormans, Inc. v. Selecky, 586 F.3d
1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth
Circuit has also held that the “sliding scale”
approach it applies to preliminary injunctions-that is,
balancing the elements of the preliminary injunction test, so
that a stronger showing of one element may offset a weaker
showing of another-survives Winter and continues to
be valid. Alliance for the Wild Rockies v. Cottrell,
622 F.3d 1045, 1050 (9th Cir. 2010). “In other words,
‘serious questions going to the merits, ’ and a
hardship balance that tips sharply toward the plaintiff can
support issuance of an injunction, assuming the other two
elements of the Winter test are also met.”
initial matter, plaintiff has failed to address any of the
elements which the court is required to weigh in deciding
whether to issue a preliminary injunction. That is, he has
not offered argument or evidence indicating that he is likely
to succeed on the merits, that he is likely to suffer
irreparable harm absent injunctive relief, that the balance
of equities tips in his favor, or that the injunction is in
the public interest. See Selecky, 586 F.3d at 1127.
Most crucially, the court has no medical evidence before it
which confirms either that: (1) plaintiff suffers from a
severe medical condition which inhibits his ability to write;
or (2) that provision of a typewriter is medically necessary
or appropriate to permit him access to the courts. The court
also notes that there is no constitutional right to provision
of a typewriter in prison. See Lindquist v. Idaho State
Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985)
(“The existence or condition of the library’s
typewriters is irrelevant, as the Constitution does not
require that they be made available to inmates.”).
Finally, plaintiff avers that he is still in the process of
exhausting prison grievance procedures on this issue. ECF No.
36 at 1-2. Absent strong evidence that the courthouse doors
would be closed to plaintiff if his motion were not granted,
the court is disinclined to pre-empt the internal grievance
procedures which afford prison officials first opportunity to
address problems without court intervention.
foregoing analysis should not be taken as an indication that
the court is unsympathetic to the litigative difficulties
facing prisoners – especially those with health issues.
To that end, the court is receptive to reasonable requests
for extensions of time. If, as plaintiff indicates, he can
only write two pages without suffering pain (ECF No. 1 at 1),
he may seek extensions in order to write at a more gradual
pace and still comply with the court’s deadlines.
foregoing reasons, it is RECOMMENDED that plaintiffs motion
for preliminary injunction (ECF No. 36) be DENIED.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Failure to
file objections within the specified time may waive the right