(PC) Mester v. Dickinson et al, No. 2:2009cv03307 - Document 21 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/22/2010 recommending that the 19 motion to stop transfer construed by the court as a motion for a temporary restraining order be denied. Objections due within 20 days after being served with these findings and recommendations. (Duong, D)

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(PC) Mester v. Dickinson et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MORRIS MESTER 11 12 13 14 15 16 Plaintiff, No. CIV S-09-3307 FCD KJN P vs. K. DICKINSON, et al. Defendants. FINDINGS AND RECOMMENDATION / Plaintiff is a state prisoner proceeding without counsel with an action under 42 17 U.S.C. § 1983. He has filed a “motion to stop transfer,” wherein he seeks to block a pending 18 reassignment from High Desert State Prison (HDSP) to Salinas Valley State Prison. Because 19 plaintiff seeks immediate intervention by this court to prevent the transfer, the court construes the 20 motion as one for a temporary restraining order. 21 A temporary restraining order is an extraordinary and temporary “fix” that the 22 court may issue without notice to the adverse party if, in an affidavit or verified complaint, the 23 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 24 movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A). 25 The purpose of a temporary restraining order is to preserve the status quo pending a fuller 26 hearing. See generally, Fed. R. Civ. P. 65; see also, E.D. Cal. L. R. (“Local Rule”) 231(a). It is 1 Dockets.Justia.com 1 the practice of this district to construe a motion for temporary restraining order as a motion for 2 preliminary injunction.1 3 A preliminary injunction should not issue unless necessary to prevent threatened 4 injury that would impair the court’s ability to grant effective relief in a pending action. Sierra 5 On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State 6 Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far 7 reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. v. 8 Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard for preliminary 9 injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he 10 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 11 equities tips in his favor, and that an injunction is in the public interest.’” Stormans, Inc. v. 12 Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., 13 ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008). In cases brought by prisoners involving conditions 14 of confinement, any preliminary injunction “must be narrowly drawn, extend no further than 15 necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive 16 means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 17 In his original complaint, plaintiff alleges, among other things, that defendants 18 have placed a false conviction of forcible rape in his record for retaliatory purposes. See Dkt No. 19 1. Shortly after this case was transferred to this district from the Northern District of California, 20 plaintiff moved the court for assistance in transferring him from HDSP to another prison. See 21 Dkt. No. 10. The court denied that motion. See Dkt. No. 17. Plaintiff has now received a 22 transfer based on medical reasons. Mot. at 2 (Dkt. No. 18). However, plaintiff opposes the 23 transfer, despite having recently asked for one, claiming that the assignment to Salinas Valley is a 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 “set up” by defendants to preserve the false conviction in his permanent record. Id. at 1. 2 “Speculative injury does not constitute irreparable injury sufficient to warrant 3 granting a preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 4 (9th Cir. 1988), citing Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 5 1984). Rather, a presently existing actual threat must be shown, although the injury need not be 6 certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 7 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997), cert. denied, 523 U.S. 1020 8 (1998); Caribbean Marine, supra, 844 F.2d at 674. Plaintiff does not demonstrate that in the 9 absence of preliminary relief he is likely to suffer irreparable harm – either on the merits of the 10 instant litigation or, more fundamentally, to his person. Plaintiff states that the inclusion of a 11 false conviction in his record puts him in danger, but he alleges no specific harm that will occur 12 if he is transferred to Salinas Valley. He does not contend that the medical purpose of the 13 transfer will be thwarted at Salinas Valley. Although plaintiff clearly believes that there is a 14 connection between the alleged conspiracy by defendants to keep a false conviction in his record 15 and his transfer to SalinasValley, there is nothing in the instant motion suggesting that such a 16 connection, even if true, has anything to do with plaintiff’s ability to prosecute his underlying 17 claims against the defendants.2 Plaintiff should be able to litigate, and the court adjudicate, his 18 case, including his claim concerning the allegedly false conviction in his record, whether or not 19 he is transferred to Salinas Valley. In sum, plaintiff has not shown any conditions of imminent 20 harm that would warrant the extraordinary exercise of immediate injunctive action against his 21 transfer. 22 For the foregoing reasons, the court will recommend that the motion to stop 23 transfer, construed by the court as a motion for a temporary restraining order, be denied. 24 //// 25 2 26 The court expresses no finding or opinion on the merit of plaintiff’s claim in these Findings and Recommendations. 3 1 2 IT IS HEREBY RECOMMENDED that the motion to stop transfer (Dkt. No. 18), construed by the court as a motion for a temporary restraining order, be denied. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 5 one days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 8 shall be served and filed within twenty-one days after service of the objections. The parties are 9 advised that failure to file objections within the specified time may waive the right to appeal the 10 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: April 22, 2010 12 13 14 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 15 16 17 mest3307.tro 18 19 20 21 22 23 24 25 26 4

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