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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LINUS EKENE, Case No. 2:20-cv-01255-KJM-JDP (PC)

12 Plaintiff,

FINDINGS AND RECOMMENDATIONS

13 v. THAT PLAINTIFF’S MOTION FOR

TEMPORARY RESTRAINING ORDER AND

14 E. BROUSSARD, et al., PRELIMINARY INJUNCTION BE DENIED

15 Defendants. ECF No. 20

16 OBJECTIONS DUE IN FOURTEEN DAYS

17 18 19 Plaintiff Linus Ekene is a state prisoner proceeding without counsel in this civil rights 20 action brought under 42 U.S.C. § 1983. He has filed a motion for a temporary restraining order 21 and a preliminary injunction, ECF No. 20, alleging that defendants have retaliated against him for 22 filing lawsuits by destroying his typewriter and confiscating his legal materials. Id. at 4, 6. 23 Plaintiff also alleges that defendants have retaliated against him by putting other inmates in his 24 cell to attack him. Id. at 3. He asks that I direct defendants to return his property and to assign 25 him a single-occupancy cell. Id. at 12. Defendants have filed an opposition, ECF No. 21, and 26 plaintiff has filed a late reply, ECF No. 23. I recommend that plaintiff’s motion be denied. 27 28 1 Legal Standards 2 “A plaintiff seeking a preliminary injunction1 must establish that he is likely to succeed 3 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 4 the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v. 5 Gross, 576 U.S. 863, 876 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 6 20 (2008)). “[P]laintiffs must establish that irreparable harm is likely, not just possible, in order 7 to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 8 1131 (9th Cir. 2011). In addition to establishing irreparable harm, the injunctive relief sought 9 must be related to the claims brought in the complaint. See Pac. Radiation Oncology, LLC v. 10 Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff seeks injunctive relief 11 based on claims not pled in the complaint, the court does not have the authority to issue an 12 injunction.”). 13 The Prison Litigation Reform Act (“PLRA”) imposes additional requirements on prisoner 14 litigants who seek preliminary injunctive relief against prison officials. In such cases, 15 “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to 16 correct the harm the court finds requires preliminary relief, and be the least intrusive means 17 necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). As the Ninth Circuit has previously 18 observed, the PLRA places significant limits upon a court’s power to grant preliminary injunctive 19 relief to inmates, and “operates simultaneously to restrict the equity jurisdiction of federal courts 20 and to protect the bargaining power of prison administrators—no longer may courts grant or 21 approve relief that binds prison administrators to do more than the constitutional minimum.” 22 Gilmore v. People of the State of California, 220 F.3d 987, 998-99 (9th Cir. 2000). 23 24 25 26 1 Plaintiff characterizes his motion as one for both a temporary restraining order and a 27 preliminary injunction. The motion does not distinguish between the two or explain why both are necessary. For our purposes, the same standard governs both forms of relief. See Synopsys, Inc. 28 v. AzurEngine Techs., Inc., 401 F. Supp. 3d 1068, 1072 (C.D. Cal. 2019). 1 Analysis 2 In their opposition, defendants dispute the facts, maintaining that all of plaintiff’s legal 3 materials remain available to him and that he currently does not have a cellmate. ECF No. 21 at 4 4, 7. They have filed a declaration from D. Santos, the litigation coordinator at Mule Creek State 5 Prison, who states that plaintiff still has access to the law library through the Law Library Paging 6 Services Program2 and can request any legal materials stored outside his cell. ECF No. 21-1 at 3- 7 4, ¶¶ 7, 13-14. Defendants state that some of plaintiff’s legal materials were moved to a “legal 8 storage area” because inmates are allowed no more than one cubic foot of legal property in their 9 cells. Id. at 4, ¶¶ 13-14. Santos states that plaintiff reviewed his stored legal materials as recently 10 as October 15, 2020. Id. at 4, ¶ 14. Finally, Santos states that plaintiff has not had a cellmate 11 since September 5, 2020 because he is currently housed in administrative segregation, charged 12 with possession of a manufactured weapon.3 13 In his reply, plaintiff disputes Santos’ account as to the accessibility of his legal materials. 14 He claims that he has made numerous requests for his legal property stored in “receiving and 15 release” storage and, to date, has been denied access to it. ECF No. 23 at 3-4. “In deciding a 16 motion for preliminary injunction, the district court is not bound to decide doubtful and difficult 17 questions of law or disputed questions of fact.” Int’l Molders’ and Allied Workers’ Local Union 18 No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir.1986) (internal citations omitted); see also Moturi 19 v. Asher, No. C19-2023 RSM-BAT, 2020 U.S. Dist. LEXIS 76512, *6-7 (W.D. Wash. 2020) 20 (“However, in Petitioner’s case, a factual dispute prevents the Court from concluding that he is at 21 a ‘substantial risk of serious harm’ and from concluding that he is likely to succeed on his 22 reasonable safety claim.”). And when a movant seeks mandatory injunctive relief—that is, when 23 he asks the court to order a party to take some action that goes beyond preserving the status 24 quo4—the facts and law must be in his favor. See Anderson v. United States, 612 F.2d 1112,

25 2 Santos states that this program replaces physical access to the law library, which has been curtailed as a result of the ongoing pandemic. ECF No. 21-1 at 2, ¶ 6. 26 3 Santos describes the weapon as “a toothbrush sharpened to a point with cloth wrapped at 27 the other end.” Id. at 3, ¶ 9. 4 There is no question that the current situation, in which plaintiff alleges that he does not 28 have access to the legal materials stored outside his cell, can be viewed for purposes of this 1 1114 (9th Cir. 1979) (“Mandatory preliminary relief, which goes well beyond simply maintaining 2 the status quo Pendente lite, is particularly disfavored, and should not be issued unless the facts 3 and law clearly favor the moving party.”) (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 4 (5th Cir. 1976)). 5 I find that plaintiff has not carried his burden of establishing that he will suffer irreparable 6 harm absent preliminary relief, and so I recommend that his motion be denied. See Xiaohua 7 Huang v. Nephos Inc., No. C 18-06654-WHA, 2019 U.S. Dist. LEXIS 149050, *2 (N.D. Cal. 8 2019) (“None of these contentions show irreparable harm. Plaintiff’s failure to establish this 9 factor alone is sufficient to deny his motion for a temporary restraining order and preliminary 10 injunction.”). I also find that plaintiff has not shown that his alleged inability to access the legal 11 materials outside his cell has irreparably harmed his ability to litigate this action. As noted above, 12 plaintiff argues that he has been without access to these materials for sixteen months. ECF No. 13 23 at 2. This action was filed was filed less than twelve months ago and, thus far, plaintiff has 14 capably prosecuted his claims. Finally, although plaintiff maintains that he cannot access his 15 legal materials, this issue is forcefully disputed by defendants, and plaintiff has not shown that, 16 faced with this conflicting factual account, he is “likely to succeed on the merits.” Glossip, 576 17 U.S. at 876. The facts and law do not “clearly favor” plaintiff, and his motion should be denied 18 on that basis. Anderson, 612 F.2d at 1114. 19 As for his housing request, plaintiff does not respond to Santos’ sworn declaration that he 20 has no cellmates to threaten him; once again, plaintiff has not shown a likelihood of success. 21 And, although Santos does not address the alleged destruction of plaintiff’s typewriter, plaintiff 22 does not seek relief related to the typewriter. See ECF No. 20 at 12 (requesting that defendants be 23 ordered to “issue plaintiff his legal materials and grant plaintiff single cell status.”). Furthermore, 24 while destruction of plaintiff’s typewriter might be troubling, preliminary relief cannot alter past 25 events. Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010) (“Past exposure to harmful 26 or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does 27 motion as the status quo. ECF No. 23 at 2 (“It has been sixteen (16) months that plaintiff has 28 been without his legal materials.”). 1 | not continue to suffer adverse effects.”). 2 I recommend that plaintiff's motion for a temporary restraining order and preliminary 3 | injunction, ECF No. 20, be denied. This recommendation will be submitted to the U.S. district 4 | judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 5 | fourteen days of the service of these findings and recommendations, the parties may file written 6 | objections with the court and serve a copy on all parties. That document must be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding district judge 8 | will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 9 10 IT IS SO ORDERED. ll ( 4 ie — Dated: _ December 22, 2020 Q_——. 12 JEREMY D. PETERSON

B UNITED STATES MAGISTRATE JUDGE

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