United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se with this civil rights
action under 42 U.S.C. § 1983, moves for a temporary
restraining order and/or preliminary injunction. He claims
that at some unspecified time in the future, he will be
transferred to another institution, and that he will not be
safe if he is housed in the general population. He claims to
have been labelled a “snitch” and that both
correctional officers and prison gang members wish to harm
him. He requests an order requiring that upon any transfer,
he be placed in a protective housing unit. For the reasons
that follow, the request should be denied.
temporary restraining order may be issued upon a showing
“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
purpose of such an order is to preserve the status quo and to
prevent irreparable harm “just so long as is necessary
to hold a hearing, and no longer.” Granny Goose
Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,
439. “The standards for granting a temporary
restraining order and a preliminary injunction are
identical.” Haw. County Green Party v.
Clinton, 980 F.Supp. 1160, 1164 (D. Haw. 1997); cf.
Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing
that an analysis of a preliminary injunction is
“substantially identical” to an analysis of a
temporary restraining order).
preliminary injunction will not issue unless necessary to
prevent threatened injury that would impair the court's
ability to grant effective relief in a pending action.
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins.
Co., 871 F.2d 863 (9th Cir. 1989). A 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). In order 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.”
Id. In cases brought by prisoners involving
conditions of confinement, any preliminary injunction
“must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means
necessary to correct the harm.” 18 U.S.C. §
fails to meet that standard. This action proceeds on an
Eighth Amendment failure to protect/deliberate indifference
to safety claim against a defendant Harrison, who is employed
at Deuel Vocation Institute (DVI). Plaintiff is now housed at
Kern Valley State Prison, and his current request involves
neither DVI nor Harrison. Because plaintiff's motion
addresses conduct that is not a subject of this civil action,
it does not demonstrate either a likelihood of success or a
serious question going to the merits of his complaint.
Generally, such unrelated allegations must be pursued through
the prison administrative process and then litigated in a
separate action. See McKinney v. Carey, 311 F.3d
1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes
v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010)
(together holding that claims must be exhausted prior to the
filing of the original or supplemental complaint); Jones
v. Felker, No. CIV S-08-0096 KJM EFB P, 2011 U.S. Dist.
LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011).
significant, however, is that plaintiff fails to show that he
will suffer irreparable or imminent harm in the absence of
the requested relief. First, there is no indication that
plaintiff will be transferred to another institution any time
soon. Second, even if plaintiff were transferred, there is no
indication that his safety needs would go unguarded. He is
currently housed in the administrative segregation unit at
Kern Valley State Prison to keep him safe. ECF No. 40 at 2.
There is simply no indication that those safety concerns
would be disregarded upon any transfer or that he would be
thoughtlessly placed in the general population if it posed a
risk to his safety. For these reasons, plaintiff's motion
for a temporary restraining order and/or preliminary
injunction must be denied.
it is hereby RECOMMENDED that plaintiff's motion for a
temporary restraining order and/or preliminary injunction
(ECF No. 40) 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