Gregory E. Shock, Plaintiff-appellee, v. Charles D. Marshall, Defendant,andd. Kays, Officer, et al., Defendant-appellant, 39 F.3d 1188 (9th Cir. 1994)

MEMORANDUM^** 

Kays, a state correctional officer, appeals the district court's order granting Shock, a prisoner, a preliminary injunction. Shock sued Kays under 42 U.S.C. § 1983 alleging that Kays used excessive force. The injunction bars Kays from escorting Shock in the prison in any situation. We have jurisdiction under 28 U.S.C. § 1292(a) (1) and reverse and remand.

We review a preliminary injunction for abuse of discretion and reverse only if the district court based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Miller v. California Pac. Medical Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc). A district court may grant a preliminary injunction if the moving party shows (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that there are serious questions going to the merits, and that the balance of hardships tips sharply in its favor. Stanley v. University of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994).

The district court based its decision on Kays' failure to respond timely to the plaintiff's motion. But granting an injunction only because defense counsel was dilatory does not meet legal standards. The district court did not make factual findings that could support a preliminary injunction and Shock presented no testimonial evidence to support his claim of excessive force.

REVERSED.