(HC) Scott v. Sisto, No. 2:2008cv02370 - Document 28 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 07/02/10 recommending that petitioner's motion for a temporary restraining order 19 and 22 be denied. MOTION for TEMPORARY RESTRAINING ORDER 19 MOTION for leave to amend TRO 22 filed by Noel Phillipe Scott. Referred to Judge Garland E. Burrell. Objections due within 21 days. (Plummer, M)
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(HC) Scott v. Sisto Doc. 28 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 NOEL PHILLIPE SCOTT, Petitioner, 13 14 No. CIV S-08-2370 GEB KJM P Respondent. 12 FINDINGS AND RECOMMENDATIONS vs. D.K. SISTO, 15 / 16 17 Petitioner is a state prisoner proceeding pro se with an application for writ of 18 habeas corpus under 28 U.S.C. § 2254. On May 13, 2010, he moved for a temporary restraining 19 order, claiming that prison officials had deprived him of his property. He seeks, among other 20 things, the return of orthopedic supplies and prescribed vitamin supplements. He has further 21 alleged that removal of his legal materials left him unable to reply to respondent’s answer to his 22 petition. 23 As to the allegation regarding his legal materials, the court granted petitioner an 24 extension of sixty days in which to file a traverse. See Docket No. 21. The court deemed that 25 length of time adequate to allow for the return of petitioner’s legal materials. The court also 26 ordered respondent to respond to the motion for a temporary restraining order to the extent it 1 Dockets.Justia.com 1 alleges the deprivation of necessary medical supplies and prescribed supplements. Id. 2 Respondent has complied with the order. See Docket No. 24. 3 Petitioner has also filed a motion to amend his initial motion for a temporary 4 restraining order. See Docket No. 22. The motion to amend alleges new claims that petitioner is 5 being denied “medical products for high cholesterol and skin cancer.” Id. at 15. The court 6 construes that motion as a second motion for a temporary restraining order. 7 I. Legal Standard For Immediate Injunctive Relief 8 9 A temporary restraining order is an extraordinary and temporary “fix” that the court may issue without notice to the adverse party if, in an affidavit or verified complaint, the 10 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 11 movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). 12 The purpose of a temporary restraining order is to preserve the status quo pending a fuller 13 hearing. See generally, Fed. R. Civ. P. 65; see also E.D. Cal. L. R. (“Local Rule”) 231(a). It is 14 the practice of this court to construe a motion for temporary restraining order as a motion for 15 preliminary injunction,1 particularly when, as here, the motion has been served on the adverse 16 party. A preliminary injunction should not issue unless necessary to prevent threatened 17 18 injury that would impair the court’s ability to grant effective relief in a pending action. “A 19 preliminary injunction ... is not a preliminary adjudication on the merits but rather a device for 20 preserving the status quo and preventing the irreparable loss of rights before judgment.” Sierra 21 On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary 22 injunction represents the exercise of a far reaching power not to be indulged except in a case 23 clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The 24 25 26 1 See, e.g., Aiello v. OneWest Bank, 2010 WL 406092, *1 (E.D. Cal. 2010) (providing that “‘[t]emporary restraining orders are governed by the same standard applicable to preliminary injunctions’”) (citations omitted). 2 1 proper legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is 2 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 3 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 4 public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting 5 Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008). In cases 6 brought by prisoners involving conditions of confinement, any preliminary injunction “must be 7 narrowly drawn, extend no further than necessary to correct the harm the court finds requires 8 preliminary relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 9 3626(a)(2). 10 II. 11 The Parties’ Submissions Respondent has submitted records showing that prison officials returned 12 petitioner’s knee and back braces, orthopedic shoes and protein tablets on May 16, 2010. See 13 Response, Ex. A. Respondent has also shown that while petitioner does have numerous medical 14 prescriptions, vitamin supplements are not among them. Id., Ex. B. 15 As for the alleged deprivation of petitioner’s legal materials, petitioner has now 16 filed a traverse. The request for the return of legal materials for the purpose of filing a traverse 17 should be denied as moot. 18 Finally, petitioner’s motion for leave to amend his motion for a temporary 19 restraining order adds for the first time his contention that he has been deprived of medical 20 products for high cholesterol and skin cancer. See Docket No. 22 at 15. The medical records 21 submitted by respondent do not reflect any prescriptions related to those conditions. 22 III. Conclusion 23 Petitioner has failed to demonstrate that any of the relief he presently seeks is 24 essential to preserve the status quo in the underlying action. More significantly, he does not 25 demonstrate that in the absence of preliminary relief he is likely to suffer irreparable harm – 26 either on the merits of the instant litigation or, more fundamentally, to his person. To the 3 1 contrary, the evidence before the court shows that petitioner has been provided the medical 2 supplies he requires. Furthermore, “[s]peculative injury does not constitute irreparable injury 3 sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. Co. v. 4 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988), citing Goldie’s Bookstore, Inc. v. Superior Court, 5 739 F.2d 466, 472 (9th Cir. 1984). Rather, a presently existing actual threat must be shown, 6 although the injury need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, 7 Inc., 395 U.S. 100, 130-31 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997), 8 cert. denied, 523 U.S. 1020 (1998); Caribbean Marine, supra, 844 F.2d at 674. 9 The court finds that petitioner has failed to demonstrate he is entitled to 10 preliminary relief with regard to medical supplies or prescriptions. Petitioner has demonstrated 11 that he is able to file a traverse; therefore his motion for the return of his legal materials is moot. 12 He has likewise not shown that he is being deprived prescribed treatment for high cholesterol or 13 skin cancer. For these reasons, petitioner’s motion for a temporary restraining order and his 14 motion to amend his motion for a temporary restraining order should be denied. Finally, the court cautions petitioner that to the extent he seeks long-term relief 15 16 for constitutional deprivations that he believes have occurred, the instant case is not the 17 appropriate vehicle for asserting such a claim. “Unrelated claims against different defendants 18 belong in different suits[.]” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, it 19 appears that the matters covered by petitioner’s motions for injunctive relief would be properly 20 brought as claims in a civil rights action under 42 U.S.C. § 1983, if the requirements for such an 21 action are met. 22 23 IT IS RECOMMENDED that petitioner’s motions for a temporary restraining order (Docket Nos. 19 and 22) be denied. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 26 one days after being served with these findings and recommendations, any party may file written 4 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 3 shall be served and filed within fourteen days after service of the objections. The parties are 4 advised that failure to file objections within the specified time may waive the right to appeal the 5 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: July 2, 2010. 7 8 9 10 4 scot2370.tro(3) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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