United States District Court, N.D. California
PAUL C. HAMILTON, Plaintiff,
v.
RON DAVIS, et al., Defendants.
ORDER DENYING REQUEST FOR INTERIM RELIEF DOCKET NO.
11
EDWARD
M. CHEN, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Paul
Hamilton, an inmate at San Quentin State Prison, filed this
pro se prisoner's civil rights action under 42
U.S.C. § 1983. In an order filed December 20, 2019, the
Court ordered Mr. Hamilton to show cause why the action
should not be dismissed under 28 U.S.C. § 1915(g)
because Mr. Hamilton has filed more than three previous
actions that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted.
Mr. Hamilton's response to the order to show cause is due
by January 24, 2020. In the meantime, Mr. Hamilton has filed
a request for an “emergency temporary injunction,
” Docket No. 11, that is now before the Court for
consideration.
II.
BACKGROUND
In his
complaint in this action, Mr. Hamilton alleges the following:
Mr. Hamilton takes hydrochlorothiazide for hypertension, a
medication that causes him to urinate frequently, especially
at night; his urine has an odor. Docket No. 1 at 3. After he
urinates, he flushes the toilet in his cell. Id. The
frequent nocturnal urination and toilet-flushing has
“caused many complaints leading to words by any
cellmate assigned to the cell, ” and there “has
been hostility in the cell at nights.” Id.
Four cellmates have moved out. Id. Mr. Hamilton
worries that he or his cellmates might become violent due to
the urinating and the toilet-flushing, although no physical
violence has occurred or been threatened. See Id. at
4. Mr. Hamilton filed a request for a reasonable
accommodation under the Americans With Disabilities Act (ADA)
and the Armstrong Remedial Plan (ARP), seeking a single cell
due to his frequent urination. On August 29, 2019, the
prison's Reasonable Accommodation Panel rejected his
request, determining that his request “did not meet any
ADA/ARP criteria.” Docket No. 1 at 7. The response
noted that Mr. Hamilton had been “evaluated by [his]
Primary Care Clinician on August 21, 2019 and it was
determined [his] medical conditions or prescribed medications
do not exclude [him] from double cell housing.”
Id. 7. Mr. Hamilton admits in his complaint that he
did not exhaust his administrative remedies before filing
this action. See Id. at 1-2.
In his
request for an “emergency temporary injunction, ”
Mr. Hamilton states that, due to his urinating and
toilet-flushing about 5-6 times per night, the situation has
“worsened to the point of inmates just up and leaving
the cell . . . without incident thus far.” Docket No.
11 at 1. He states that his activities wake up cellmates
“to a grumpy encounter, ” and 3-4 inmates
“chose to just leave” over the last several
months. Id. at 2. According to Mr. Hamilton, there
is “no telling what could occur in the middle of the
night with an irate cellmate who feels he is being
disrespected.” Mr. Hamilton seeks a temporary
restraining order/preliminary injunction compelling prison
officials to give him a single cell until this action has
been fully litigated.
III.
DISCUSSION
A
temporary restraining order preserves the status quo and
prevents irreparable harm until a hearing can be held on a
preliminary injunction application. See Granny Goose
Foods, Inc. v. Brotherhood of Teamsters & Auto Truck
Drivers, 415 U.S. 423, 439 (1974). A temporary
restraining order (TRO) is an “extraordinary
remedy” that a court should award only when a plaintiff
makes a clear showing that he is entitled to such relief.
See Winter v. Natural Res. Defense Council, Inc.,
555 U.S. 7, 24 (2008). The standards for a TRO are the same
as those for a preliminary injunction. See Stuhlbarg
Int'l Sales Co., Inc. v. John D. Brush & Co.,
Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff
must demonstrate (1) a likelihood of success on the merits,
(2) a likelihood of irreparable harm that will result if an
injunction is not issued, (3) the balance of equities tips in
favor of the plaintiff, and (4) an injunction is in the
public interest. See Winter, 555 U.S. at
20.[1]
The irreparable injury must be both likely and immediate.
See id. at 22; Caribbean Marine Services Co.,
Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)
(“A plaintiff must do more than merely allege imminent
harm sufficient to establish standing; a plaintiff must
demonstrate immediate threatened injury as a
prerequisite to preliminary injunctive relief.”)
Mr.
Hamilton is not entitled to a TRO or preliminary injunction
compelling prison officials to house him in a single cell.
There are several problems with his request. First, the
evidentiary support for the requested TRO falls short of
showing that irreparable harm is likely and imminent if
interim relief is not granted. Mr. Hamilton's verified
request provides no specific information about any actual
threat to his physical safety. Indeed, he admits that he does
not know whether harm will befall him, as he states under
penalty of perjury that there is “no telling what could
occur” if a cellmate becomes irate about the nocturnal
urination and toilet-flushing. Docket No. 11 at 2. The
circumstances described in his complaint and request simply
do not show that irreparable harm is likely and imminent if
he is not single-celled. Mr. Hamilton's filings show that
the frequent urination/toilet flushing situation has existed
for about a year and that cellmates have responded with some
verbal complaints and perhaps by moving to other cells.
Although past results are not a guarantee of future results,
the absence of any violence in the past year weighs against a
finding that violence is likely or imminent.
Second,
Mr. Hamilton has not shown a likelihood of success on the
merits of this action. His admitted failure to exhaust
administrative remedies before filing this action makes it
quite unlikely that he will prevail on the merits in this
action. The requirement that prisoners exhaust administrative
remedies, see 42 U.S.C. § 1997e(a), is
mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856
(2016). Courts may not create their own “special
circumstances” exceptions to the exhaustion
requirement. Id. (reversing Fourth Circuit's
ruling that failure to exhaust was justified where prisoner
reasonably-even though mistakenly-believed he had exhausted
remedies). This Court cannot simply ignore the nonexhaustion
of administrative remedies by Mr. Hamilton to reach the
merits of his Eighth Amendment claim. Cf. Farmer v.
Brennan, 511 U.S. 825, 847 (1994) (“[w]hen a
prison inmate seeks injunctive relief, a court need not
ignore the inmate's failure to take advantage of adequate
prison procedures, and an inmate who needlessly bypasses such
procedures may properly be compelled to pursue them.”)
Third,
Mr. Hamilton has not shown a likelihood of success on the
merits for the separate reason that his Eighth Amendment
claim as presently alleged is weak on its face. The Eighth
Amendment requires that prison officials take reasonable
measures to protect prisoners from violence at the hands of
other prisoners. See Farmer, 511 U.S. at 832;
see Id. at 834 (in failure-to-protect context, the
prisoner must show (1) “that he is incarcerated under
conditions posing a substantial risk of serious harm, ”
and (2) the prison official is, subjectively, deliberately
indifferent to the prisoner's health or safety). Mr.
Hamilton has not shown that there is a “substantial
risk of serious harm” to him. In the last year, words
have been spoken and cellmates have moved away, but Mr.
Hamilton does not indicate that any of them have done or
threatened anything physical to him. A prisoner does not need
to wait to be attacked to press an Eighth Amendment claim,
but there must still be a substantial risk of serious harm
before a constitutional claim is stated. See Id. at
845. His failure to show a likelihood of success on the
merits weighs against the issuance of a TRO or preliminary
injunction.
Finally,
Mr. Hamilton does not show the need for a TRO without any
notice to Defendants, who have not yet been served with
process in this action. Federal Rule of Civil Procedure
65(b)(1) provides that a TRO can issue without notice to
adverse party only if “specific facts in an affidavit
or a verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition”
and the movant certifies in writing the efforts to give
notice and the reasons why notice should not be required.
These stringent requirements “reflect the fact that our
entire jurisprudence runs counter to the notion of court
action taken before reasonable notice and an opportunity to
be heard has been granted both sides of a dispute.”
Granny Goose, 415 U.S. at 423. Additionally, Mr.
Hamilton does not provide any information about his efforts
to give notice to Defendants, as he must under Rule 65(b)(1)
and why such notice should not be given. His failure to
satisfy Rule 65(b)(1) is fatal to his ex parte
request.
IV.
CONCLUSION
For the
foregoing reasons, Plaintiffs ex parte request for a
TRO or ...