-JFM (PC) Alcala v. Martel, No. 2:2009cv03407 - Document 35 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/7/11 RECOMMENDING that 32 MOTION for TEMPORARY RESTRAINING ORDER be denied. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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-JFM (PC) Alcala v. Martel Doc. 35 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH G. ALCALA, 11 Plaintiff, 12 13 14 15 16 No. 2:09-cv-3407 FCD JFM (HC) vs. MIKE MARTEL, Warden, et al., Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff, a state prisoner proceeding pro se, has filed a second amended complaint 17 pursuant to 42 U.S.C. § 1983. On March 14, 2011, plaintiff filed a motion for a temporary 18 restraining order. Plaintiff alleges that on March 9, 2011, staff at Mule Creek State Prison who 19 are not parties to this suit subjected him to a strip search and a search of his cell because plaintiff 20 had iritated the warden by filing the instant action. See Doc. No. 32 at 2. Plaintiff also contends 21 that some of his personal items were confiscated. Id. Plaintiff seeks an order prohibiting further 22 harassment, retaliation or intimidation. Id. at 3. 23 The purpose in issuing a temporary restraining order is to preserve the status quo 24 pending a fuller hearing. The cases contain limited discussion of the standards for issuing a 25 temporary restraining order due to the fact that very few such orders can be appealed prior to the 26 hearing on a preliminary injunction. It is apparent however, that requests for temporary 1 Dockets.Justia.com 1 restraining orders which are not ex parte and without notice are governed by the same general 2 standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. 3 Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch. 4 Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); 5 Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the 6 emphasis of the court is directed to irreparable harm and the balance of hardships because the 7 merits of a controversy are often difficult to ascertain and adjudicate on short notice. 8 9 The legal principles applicable to a request for injunctive relief are well established. To prevail, the moving party must show either a likelihood of success on the merits 10 and the possibility of irreparable injury, or that serious questions are raised and the balance of 11 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 12 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 13 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 14 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 15 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 16 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 17 court need not reach the issue of likelihood of success on the merits. Id. 18 In cases brought by prisoners involving conditions of confinement, any 19 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 20 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 21 correct the harm.” 18 U.S.C. § 3626(a)(2). 22 This action is proceeding on claims raised against three defendants in plaintiff's 23 second amended complaint, filed June 22, 2010. Though framed as a request for temporary 24 restraining order, the instant request arises from events that are entirely distinct from the claims 25 raised in plaintiff's second amended complaint and allegedly occurred approximately one year 26 after the second amended complaint was filed. None of the current defendants to this action 2 1 were involved in the alleged events that gave rise to the instant request. Moreover, the instant 2 request was filed five days after the events that give rise to it, precluding any possibility that 3 plaintiff has exhausted administrative remedies with respect to the claims raised therein. Cf. 42 4 U.S.C. § 1997e(a). Lastly, plaintiff’s motion is based on actions taken by individuals not named 5 in this action. Plaintiff is advised that the court is unable to issue an order against individuals 6 who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, 7 Inc., 395 U.S. 100, 112 (1969). Thus, the claims raised in the request for temporary restraining 8 order are not at issue in the instant proceedings, nor do those claims involve any of the named 9 defendants. For these reasons, IT IS HEREBY RECOMMENDED that plaintiff's March 14, 10 11 2011 request for temporary restraining order be denied. These findings and recommendations are submitted to the United States District 12 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: April 7, 2011. 21 22 23 24 /014;alca3407.tro 25 26 3

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