(PC) Bejaran v. Adams et al, No. 1:2009cv00478 - Document 33 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sheila K. Oberto on 7/30/10: Recommending that Plaintiff's Motion for a Temporary Restraining Order be DENIED; Matter 12 , 20 referred to Judge Ishii; Objections to F&R due by 9/2/2010, Reply due 10 days after service of the objections. (Hellings, J)
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(PC) Bejaran v. Adams et al Doc. 33 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JESSE EDWARD BEJARAN, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-00478-AWI-SKO PC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER BE DENIED v. DERRAL ADAMS, et al., (Doc. 20.) 13 Defendants. OBJECTIONS DUE WITHIN 30 DAYS 14 / 15 16 Plaintiff Jesse Edward Bejaran (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 21, 2009, Plaintiff 18 filed a motion requesting a temporary restraining order alleging prison officials are tampering with 19 his mail. (Doc. #20.) 20 The purpose of a temporary restraining order or a preliminary injunction is to preserve the 21 status quo if the balance of equities so heavily favors the moving party that justice requires the court 22 to intervene to secure the positions until the merits of the action are ultimately determined. 23 University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). “A plaintiff seeking a preliminary 24 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 25 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 26 and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 27 129 S. Ct. 365, 374 (2008). 28 /// 1 Dockets.Justia.com 1 “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be 2 granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 3 Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations omitted) (emphasis in original). A 4 party seeking a preliminary injunction simply cannot prevail when that motion is unsupported by 5 evidence. With respect to motions for preliminary injunctive relief or a temporary restraining order, 6 the Prison Litigation Reform Act (“PLRA”) provides that: 7 8 9 10 11 [i]n any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief 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 that harm. 18 U.S.C. § 3626(a)(2). 12 Plaintiff has not shown that he is entitled to the extraordinary remedy of a temporary 13 restraining order. The only evidence included with Plaintiff’s motion is a three-page declaration 14 from Plaintiff stating that he will suffer irreparable injury because Defendants have been tampering 15 with Plaintiff’s legal mail. Plaintiff complains that Defendants are opening mail from the Court 16 addressed to Plaintiff outside his presence. Mail from the Court is not privileged or confidential or 17 otherwise afforded protection beyond that which is provided for ordinary mail. See Keenan v. Hall, 18 83 F.3d 1083, 1094 (9th Cir. 1996). Mail from the Court generally consists of information that can 19 easily be accessed by any member of the public. Plaintiff has cited no authority that supports the 20 proposition that he suffers a constitutional injury when mail from the Court is opened outside his 21 presence. Plaintiff also complains that prison officials are not sending his outgoing mail addressed 22 to the Court. Notably, Plaintiff has not missed any deadlines in this case and has not suffered any 23 prejudice in this case due to late filings. 24 Plaintiff also complains that prison officials will conduct harassing cell searches to confiscate 25 Plaintiff’s legal materials and interfere with his legal research. Plaintiff’s allegations are speculative. 26 Plaintiff has failed to establish that the threat of irreparable injury is imminent. Plaintiff is not 27 entitled to the extraordinary remedy of a temporary restraining order based only on his conclusory 28 allegation that prison officials may confiscate his legal materials in the future. 2 1 Further, the Court notes that Plaintiff has made no effort to demonstrate that he is likely to 2 prevail on the merits of this action. Accordingly, the Court HEREBY RECOMMENDS that 3 Plaintiff’s motion for a temporary restraining order be DENIED. 4 These Findings and Recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 6 days after being served with these Findings and Recommendations, any party may file written 7 objections with the Court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within ten (10) days after service of the objections. The parties are advised 10 that failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Dated: ie14hj July 30, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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