(PC) Harper v. Wong et al, No. 2:2008cv03154 - Document 12 (E.D. Cal. 2009)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/6/09 ORDERING the clerk to randomly assign a US District Judge to this case; and RECOMMENDING that pltf's 2 motion for injunctive relief be denied. Assigned and Referred to Judge John A. Mendez; Objections to F&R due w/in 15 days. The new case number is 2:08-cv-3154 JAM EFB (PC).(Yin, K)
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(PC) Harper v. Wong et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ERIC HARPER, Plaintiff, 11 vs. 12 13 No. CIV S-08-3154 EFB P R. K. WONG, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 Plaintiff is a prisoner without counsel seeking relief pursuant to 42 U.S.C. § 1983. 16 17 Currently pending is plaintiff’s motion for a temporary restraining order and a preliminary 18 injunction. Plaintiff seeks an order directing that the warden of HDSP and staff refrain from 19 threatening him and harassing him in retaliation for pursuing lawsuits. 20 I. 21 Relevant Procedural History This action proceeds on the initial complaint. In the complaint, plaintiff alleges that 22 defendants violated his rights by denying his request to be moved from High Desert State Prison 23 (hereafter “HDSP”), to an institution closer to his mother, who because of severe illness cannot 24 visit plaintiff and by denying his administrative appeal of this matter. In the motion for 25 preliminary injunctive relief, plaintiff alleges that since arriving at HDSP, unidentified staff have 26 threatened him with violence both orally and in writing. He also alleges that he has been 1 Dockets.Justia.com 1 subjected to physical abuse because he is a “Sensitive Needs Inmate.”1 He does not identify by 2 name any person who has threatened him or used excessive force against him. In this regard, he 3 alleges that HDSP staff and guards intentionally cover their name tags so that prisoners cannot 4 identify them in grievances or in litigation. 5 II. 6 Standards A temporary restraining order is available to an applicant for a preliminary injunction 7 when the applicant may suffer irreparable injury before the court can hear the application for a 8 preliminary injunction. Fed. R. Civ. P. 65(b) (motion for preliminary injunction shall be set for 9 hearing at earliest possible time after entry of temporary restraining order); Granny Goose 10 Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 11 415 U.S. 423, 439 (1974) (temporary restraining order issued in state court expired ten days after 12 action was removed to federal court); Wright, Miller & Kane, Federal Practice & 13 Procedure, § 2951 (2d ed. 1995). Here, the court addresses herein plaintiff’s motion for a 14 preliminary injunction and, accordingly, a temporary restraining order pending that ruling is 15 unnecessary. 16 A preliminary injunction will not issue unless necessary to prevent threatened injury that 17 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 18 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 19 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 20 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 21 326 F.2d 141, 143 (9th Cir. 1964). The Ninth Circuit recently modified its standard for 22 preliminary injunctive relief to conform to the Supreme Court’s admonition in Winter v. Natural 23 Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008), that the moving party must 24 25 26 1 Plaintiff does not explain this term. 2 1 demonstrate that--absent an injunction--irreparable injury is not only possible, but likely.2 2 Stormans, Inc. v. Selecky, Nos. 07-36039, 07-36040, 2009 WL 1941550 at *13 (9th Cir. July 8, 3 2009). Under the new standard, “preliminary injunctive relief requires a party to demonstrate 4 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 5 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 6 is in the public interest.’” Stormans, Inc., at 13, quoting Winter v. Natural Res. Def. Council, 7 Inc., ___ U.S. at ___, 129 S.Ct. at 375-76. In cases brought by prisoners involving conditions of 8 confinement, any preliminary injunction “must be narrowly drawn, extend no further than 9 necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive 10 means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 11 III. 12 Analysis Plaintiff has not met the requirements for a preliminary injunction. He alleges that his 13 rights to family visitation and to due process in the administrative appeals process have been 14 violated. However, he has not presented evidence showing that prison officials have 15 unconstitutionally interfered with any rights that he may have to visit with his mother. See Pell 16 v. Procunier, 417 U.S. 817, 822, 827 (1974)(security concerns re the operation of a prison can 17 justify limiting means of communication and visitation with persons outside the prison). 18 Moreover, plaintiff does not have a federally-protected interest in a prison grievance procedure, 19 Mann v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898 (1988), or in being 20 housed at a particular facility. Meachum v. Fano, 427 U.S. 215, 224 (1976); Olim v. 21 Wakinekona, 461 U.S. 238, 245-49 (1983). Finally, insofar as he seeks to make an Eighth 22 Amendment claim, plaintiff has not shown on this motion a deprivation of any basic human 23 2 24 25 26 Under the previous standard a preliminary injunction could be granted “if the plaintiff ‘demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.’” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir.2003) (internal quotation marks and citations omitted) (reversing the denial of a preliminary injunction where the district court had found that the mere possibility of such harm was speculative). 3 1 need. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991); Rhodes v. Chapman, 452 U.S. 337, 2 347 (1981). 3 Further undermining plaintiff’s motion is that he makes no connection between the 4 allegations in the complaint and the allegations in his motion. Nor does he specify which 5 defendants, if any, participated in the wrongdoing alleged in the instant motion. He alleges that 6 officers cover their name tags, thereby preventing him from naming them in this action. But it is 7 possible that he could learn their identities from prisoners who have been at HDSP longer than 8 he. Furthermore, he alleges that he has received written threats from staff. It is unclear how he 9 would know that HDSP staff authored these notes unless they were signed. Further casting 10 doubt on his allegations is the fact that he has not submitted these notes in support of his motion. 11 The court cannot issue a blanket order enjoining all defendants from engaging in conduct 12 without any evidence that they participated in wrongdoing. 13 Not only are the allegations in the motion wholly unrelated to the complaint, but it 14 appears that plaintiff could not support these allegations with evidence. He has not submitted 15 copies of medical records, which might substantiate his claims of physical abuse. Overall, he 16 has not presented evidence that anyone, much less the defendants in this action, engaged in any 17 wrongdoing that threatens plaintiff with imminent harm. The court cannot find that plaintiff 18 faces an immediate threat of irreparable harm based on speculation. See Winter, ___ U.S. at 19 ___, 129 S.Ct. at 375-76; Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 20 1998). 21 For these reasons, plaintiff has failed to demonstrate that he is entitled to a preliminary 22 injunction. 23 //// 24 //// 25 //// 26 //// 4 1 2 3 4 5 6 7 8 9 IV. Conclusion Plaintiff has not made the showings necessary to obtain a temporary restraining order or a preliminary injunction and his motion must be denied. Accordingly, it is hereby ORDERED that the Clerk randomly assign a United States District Judge to this case.3 Further, it is RECOMMENDED that plaintiff’s December 29, 2008, motion for injunctive relief be denied. These 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)(l). Within fifteen days 10 after being served with these findings and recommendations, plaintiff may file written objections 11 with the court and serve a copy on all parties. Such a document should be captioned “Objections 12 to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 13 specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 14 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: August 6, 2009. 16 17 18 19 20 21 22 23 3 24 25 26 This case is currently referred to the Magistrate Judge pursuant to Local Rule 72-302 (c)(17). Plaintiff returned the form for consenting or declining to have this case decided by a Magistrate Judge with both the “consent to jurisdiction” and “decline of jurisdiction” signed by the plaintiff and with both blocks unchecked. Dckt. No. 4. Thus, he it is not clear that he has consented to jurisdiction ay a Magistrate Judge and this motion will be addressed by proposed findings and recommendations. 5
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