1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 3:20-cv-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR PRELIMINARY vs. INJUNCTION AND TEMPORARY 14 RESTRAINING ORDER A. CORDERO; D. WHITE; 15 WHITMAN, 16 Defendants. 17 (ECF No. 9) 18 19 20 Presently before the Court is Plaintiff Joseph Davall’s Motion for Temporary 21 Restraining Order and Preliminary Injunction (“Mot.,” ECF No. 9). Defendant Cordero 22 filed a Response in Opposition to (“Opp’n,” ECF No. 15), and Plaintiff filed a Reply in 23 support of (“Reply,” ECF No. 28), the Motion. The Court took the matter under submission 24 without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 20. For the 25 reasons set forth below, the Court DENIES Plaintiff’s Motion. 26 BACKGROUND 27 Plaintiff, an inmate currently incarcerated at Calipatria State Prison, filed the present 28 civil rights action pursuant to 42 U.S.C. § 1983. See generally Complaint (“Compl.”), ECF 1 No. 1. Plaintiff alleges that Defendants violated his rights under the Eighth Amendment 2 by not permanently housing him in a single cell. See id. at 3–5. 3 In early July 2019, Plaintiff met with Defendant Cordero and informed him that 4 Plaintiff needed a single cell because his cellmate was asking for “paperwork to prove that 5 [Plaintiff] was not a sex offender.” Id. at 3. Plaintiff claims that he is at risk of being 6 assaulted by other inmates while in his cell “if they find out that [Plaintiff] is a sex 7 offender.” Id. Cordero told him, however, that he could not have a single cell. See id. 8 Cordero purportedly told Plaintiff that he would “have to do something really bad to get a 9 single cell.” Id. 10 In mid-July 2019, Plaintiff “again approached Counselor Cordero and informed him 11 that [his cellmate] was becoming more aggressive and demanding paperwork.” Id. 12 Plaintiff again requested a single cell, but Defendant Cordero denied that request. See id. 13 On July 28, 2019, Plaintiff alleges he was attacked by his cellmate, which resulted in two 14 broken fingers, and Plaintiff received a “write up causing credit loss.” Id. On September 15 17, 2019, Plaintiff was placed in “disciplinary segregation” for 180 days. Id. at 4. 16 Plaintiff filed an administrative grievance on February 14, 2020, seeking single cell 17 status, but his request was denied by Associate Warden Whitman. See id. at 5. Plaintiff 18 “requested a single cell . . . because the other inmates here are violent and they prey on sex 19 offenders.” Id. Plaintiff claims he “should not have to wait to be assaulted again to get a 20 single cell.” Id. 21 After filing this action, Plaintiff alleges that he “was sexually assaulted again . . . by 22 [his] celley.” Mot. at 2. Plaintiff and his cellmate were separated while an investigation 23 was performed. Opp’n at 3. Plaintiff was assigned to a single cell, where he remains today. 24 Id. 25 On November 5, 2020, the District Court conducted the sua sponte screening of 26 Plaintiff’s Complaint as required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and dismissed 27 Plaintiff’s claims against Defendant White but determined that Plaintiff alleged sufficient 28 factual content to survive initial screening as to his Eighth Amendment claim against 1 Defendants Cordero and Whitman. ECF No. 4 at 8–9. On November 18, 2020, Plaintiff 2 moved for reconsideration of the sua sponte dismissal of Defendant White, which the Court 3 denied. See ECF Nos. 7, 11. On December 2, 2020, Plaintiff filed the present Motion for 4 a preliminary injunction and temporary restraining order seeking single-cell status pending 5 a determination of his case on the merits. See ECF No. 9. 6 LEGAL STANDARD 7 Federal Rule of Civil Procedure 65(b) governs the issuance of temporary restraining 8 orders. The standard for a temporary restraining order (“TRO”) is identical to the standard 9 for a preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s 10 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). “[T]he basic function of a 11 preliminary injunction is to preserve the status quo ante litem pending a determination of 12 the action on the merits.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 13 F.2d 1197, 1200 (9th Cir. 1980). The decision of whether to grant or deny a motion for 14 preliminary injunction is a matter of the district court’s discretion. Am. Trucking Ass’ns, 15 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 16 A plaintiff seeking preliminary relief must establish “[1] that he is likely to succeed 17 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary 18 relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the 19 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The 20 elements of this test are “balanced, so that a stronger showing of one element may offset a 21 weaker showing of another.” All. for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049–50 22 (9th Cir. 2010), rev’d on other grounds, 632 F.3d 1127 (9th Cir. 2011). Generally, a 23 temporary restraining order is considered “an extraordinary remedy that may only be 24 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. 25 at 22. 26 /// 27 /// 28 /// 1 The Prison Litigation Reform Act requires any injunctive relief to satisfy additional 2 requirements when a prisoner seeks preliminary injunctive relief against prison officials: 3 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires 4 preliminary relief, and be the least intrusive means necessary to 5 correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal 6 justice system caused by the preliminary relief and shall respect 7 the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 8
9 18 U.S.C. § 3626(a)(2). 10 Section 3626(a)(2) places significant limits upon a court’s power to grant 11 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity 12 jurisdiction of federal courts and to protect the bargaining power of prison administrators— 13 no longer may courts grant or approve relief that binds prison administrators to do more 14 than the constitutional minimum.” Gilmore v. People of the State of Cal., 220 F.3d 987, 15 998–99 (9th Cir. 2000). 16 ANALYSIS 17 I. Likelihood of Success on the Merits 18 Plaintiff contends that placing him in a double cell at Calipatria violated the Eighth 19 Amendment bar against cruel and unusual punishment. See Compl. at 8.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 3:20-cv-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR PRELIMINARY vs. INJUNCTION AND TEMPORARY 14 RESTRAINING ORDER A. CORDERO; D. WHITE; 15 WHITMAN, 16 Defendants. 17 (ECF No. 9) 18 19 20 Presently before the Court is Plaintiff Joseph Davall’s Motion for Temporary 21 Restraining Order and Preliminary Injunction (“Mot.,” ECF No. 9). Defendant Cordero 22 filed a Response in Opposition to (“Opp’n,” ECF No. 15), and Plaintiff filed a Reply in 23 support of (“Reply,” ECF No. 28), the Motion. The Court took the matter under submission 24 without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 20. For the 25 reasons set forth below, the Court DENIES Plaintiff’s Motion. 26 BACKGROUND 27 Plaintiff, an inmate currently incarcerated at Calipatria State Prison, filed the present 28 civil rights action pursuant to 42 U.S.C. § 1983. See generally Complaint (“Compl.”), ECF 1 No. 1. Plaintiff alleges that Defendants violated his rights under the Eighth Amendment 2 by not permanently housing him in a single cell. See id. at 3–5. 3 In early July 2019, Plaintiff met with Defendant Cordero and informed him that 4 Plaintiff needed a single cell because his cellmate was asking for “paperwork to prove that 5 [Plaintiff] was not a sex offender.” Id. at 3. Plaintiff claims that he is at risk of being 6 assaulted by other inmates while in his cell “if they find out that [Plaintiff] is a sex 7 offender.” Id. Cordero told him, however, that he could not have a single cell. See id. 8 Cordero purportedly told Plaintiff that he would “have to do something really bad to get a 9 single cell.” Id. 10 In mid-July 2019, Plaintiff “again approached Counselor Cordero and informed him 11 that [his cellmate] was becoming more aggressive and demanding paperwork.” Id. 12 Plaintiff again requested a single cell, but Defendant Cordero denied that request. See id. 13 On July 28, 2019, Plaintiff alleges he was attacked by his cellmate, which resulted in two 14 broken fingers, and Plaintiff received a “write up causing credit loss.” Id. On September 15 17, 2019, Plaintiff was placed in “disciplinary segregation” for 180 days. Id. at 4. 16 Plaintiff filed an administrative grievance on February 14, 2020, seeking single cell 17 status, but his request was denied by Associate Warden Whitman. See id. at 5. Plaintiff 18 “requested a single cell . . . because the other inmates here are violent and they prey on sex 19 offenders.” Id. Plaintiff claims he “should not have to wait to be assaulted again to get a 20 single cell.” Id. 21 After filing this action, Plaintiff alleges that he “was sexually assaulted again . . . by 22 [his] celley.” Mot. at 2. Plaintiff and his cellmate were separated while an investigation 23 was performed. Opp’n at 3. Plaintiff was assigned to a single cell, where he remains today. 24 Id. 25 On November 5, 2020, the District Court conducted the sua sponte screening of 26 Plaintiff’s Complaint as required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and dismissed 27 Plaintiff’s claims against Defendant White but determined that Plaintiff alleged sufficient 28 factual content to survive initial screening as to his Eighth Amendment claim against 1 Defendants Cordero and Whitman. ECF No. 4 at 8–9. On November 18, 2020, Plaintiff 2 moved for reconsideration of the sua sponte dismissal of Defendant White, which the Court 3 denied. See ECF Nos. 7, 11. On December 2, 2020, Plaintiff filed the present Motion for 4 a preliminary injunction and temporary restraining order seeking single-cell status pending 5 a determination of his case on the merits. See ECF No. 9. 6 LEGAL STANDARD 7 Federal Rule of Civil Procedure 65(b) governs the issuance of temporary restraining 8 orders. The standard for a temporary restraining order (“TRO”) is identical to the standard 9 for a preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s 10 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). “[T]he basic function of a 11 preliminary injunction is to preserve the status quo ante litem pending a determination of 12 the action on the merits.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 13 F.2d 1197, 1200 (9th Cir. 1980). The decision of whether to grant or deny a motion for 14 preliminary injunction is a matter of the district court’s discretion. Am. Trucking Ass’ns, 15 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 16 A plaintiff seeking preliminary relief must establish “[1] that he is likely to succeed 17 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary 18 relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the 19 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The 20 elements of this test are “balanced, so that a stronger showing of one element may offset a 21 weaker showing of another.” All. for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049–50 22 (9th Cir. 2010), rev’d on other grounds, 632 F.3d 1127 (9th Cir. 2011). Generally, a 23 temporary restraining order is considered “an extraordinary remedy that may only be 24 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. 25 at 22. 26 /// 27 /// 28 /// 1 The Prison Litigation Reform Act requires any injunctive relief to satisfy additional 2 requirements when a prisoner seeks preliminary injunctive relief against prison officials: 3 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires 4 preliminary relief, and be the least intrusive means necessary to 5 correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal 6 justice system caused by the preliminary relief and shall respect 7 the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 8
9 18 U.S.C. § 3626(a)(2). 10 Section 3626(a)(2) places significant limits upon a court’s power to grant 11 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity 12 jurisdiction of federal courts and to protect the bargaining power of prison administrators— 13 no longer may courts grant or approve relief that binds prison administrators to do more 14 than the constitutional minimum.” Gilmore v. People of the State of Cal., 220 F.3d 987, 15 998–99 (9th Cir. 2000). 16 ANALYSIS 17 I. Likelihood of Success on the Merits 18 Plaintiff contends that placing him in a double cell at Calipatria violated the Eighth 19 Amendment bar against cruel and unusual punishment. See Compl. at 8. Specifically, 20 Plaintiff argues that because he is a sex offender, he is a target for violence when he is 21 housed with another inmate in a double cell, which amounts to a “failure to protect.” See 22 id. 23 The Eighth Amendment protects prisoners from “inhumane conditions of 24 confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prisoners are 25 entitled to “adequate shelter, food, clothing, sanitation, medical care, and personal safety.” 26 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). However, the Eighth Amendment 27 does not mandate comfortable prisons. Farmer v. Brennan, 511 U.S. 825, 832 (1994). 28 /// 1 Prisons can be both restrictive and harsh without violating the Constitution. Rhodes v. 2 Chapman, 452 U.S. 337, 347 (1981). 3 “An Eighth Amendment failure to protect claim has two elements: (1) the condition 4 complained of must be shown to present a substantial risk of serious harm, and (2) the 5 defendant must be shown to have possessed a sufficiently culpable state of mind.” Palacios 6 v. Chavez, No. C 06–7619 PJH, 2011 WL 4527467 at *1 (N.D. Cal. Sept. 29, 2011); see 7 also Farmer, 511 U.S. at 834. To satisfy the second requirement, a prisoner must allege 8 that the prison official acted with “deliberate indifference.” Farmer, 511 U.S. at 834. A 9 prison official acts with deliberate indifference if he “knows of and disregards an excessive 10 risk to inmate health or safety; the official must both be aware of facts from which the 11 inference could be drawn that a substantial risk of serious harm exists, and he must also 12 draw the inference.” Id. at 837. 13 First, the facts and evidence presented tend to show that Plaintiff has failed to 14 identify an objectively substantial risk of serious harm presented by a specific inmate. A 15 generalized threat of fear does not satisfy the objective prong of Farmer. Turner v. Bunn, 16 No. 96-35383, 1997 WL 51558, at *2 (9th Cir. 1997) (holding that expressing only a 17 general fear of harm by other inmates fails to create a triable issue of fact as to the risk of 18 serious harm). Plaintiff states that he is “in imminent danger of sexual assault, physical 19 assault [and] battery, extortion, and any number of ‘punishments’ for [his] commitment 20 offense . . . .” Mot. at 2. To support this assertion, Plaintiff relies on “the multiple assaults 21 [he has] suffered so far.” Id. at 3. 22 Plaintiff’s Complaint and Motion identify two alleged incidents of assault at 23 Calipatria as the basis for his Eighth Amendment claim.1 Sexual abuse does constitute 24 “serious harm,” see Farmer, 511 U.S. at 833–34; however, Defendant has submitted factual 25 material attacking the credibility of Plaintiff’s claims. Plaintiff had two different cellmates 26
27 1 Plaintiff also generally states that “[he] suffered [sexual assault] by [his] celley at a previous institution.” 28 1 from March 17, 2020, to July 7, 2020, and Defendant submitted evidence that there were 2 no reported incidents with either cellmate. Opp’n at 3 (citing Declaration of M. Whitman 3 (“Whitman Decl.”) ¶ 7, ECF No. 15-1). 4 Regarding the July 28, 2019 incident, Defendant presented evidence that Plaintiff 5 was the aggressor. Opp’n at 2 (citing Whitman Decl. ¶ 2). Defendant argues that “Plaintiff 6 is the one who attacked [his cellmate],” and “Plaintiff later pled guilty to Battery on an 7 Inmate as result of the incident.” Opp’n at 6–7. Defendant further contends that “although 8 the incident involved his cellmate, single-cell status would not have prevented the fight 9 because it occurred on the way to the cafeteria that all Facility D inmates use.” Id. at 6. 10 Plaintiff argues that “the fight was a direct result of the double cell placement.” Reply at 11 2. Plaintiff contends that he “was defending [himself] against [his] celley’s increasing 12 aggression over h[im] want[ing] [Plaintiff] to show him paperwork that proves [Plaintiff 13 is] not a sex offender.” Id. 14 Regarding the October 2020 incident,2 Defendant’s internal investigation showed 15 Plaintiff’s allegations that his cellmate sexually assaulted him were unsubstantiated. Opp’n 16 at 7; see Ex. 1 at AGO 33–42. Despite the results of the investigation, Plaintiff and his 17 cellmate were immediately separated, and Plaintiff remains in a single cell to address 18 Plaintiff’s safety concerns. Opp’n at 7. 19 Second, Plaintiff has not satisfied the subjective prong of Farmer by sufficiently 20 showing Defendant acted with “deliberate indifference.” As an initial matter, Plaintiff does 21 not have a constitutional right to be housed at a particular institution or in a particular cell. 22 See Olim v. Wakinekona, 461 U.S. 238, 244-50 (1983); Meachum v. Fano, 427 U.S. 215, 23 224 (1976); Moody v. Daggett, 429 U.S. 78, 87 n.9 (1976). Defendant assigned Plaintiff 24 to “Facility D, a Sensitive Needs Yard that is designed to house inmates with safety 25 26 27 2 Plaintiff stated in his Motion that the incident occurred on October 24, 2020, Mot. at 3; however, Defendant’s evidence shows Plaintiff informed staff of the incident on October 22, 2020, see Opp’n at 1 28 1 concerns, including sex offenders,” when he arrived at Calipatria State Prison on July 3, 2 2019. Opp’n at 1 (citing Whitman Decl. ¶ 2). 3 Defendant’s evidence tends to show Defendant acted reasonably in assuming 4 Plaintiff could be placed safely with a cellmate because he voluntarily signed five 5 compatibility or safety chronos. Opp’n at 8–9 (citing Ex. 1 at AGO 31-32, 41, 50, and 95). 6 Prior to the October 2020 incident, 7 Plaintiff was assigned to cell with an elderly inmate who was considered compatible because of his history of celling with 8 Plaintiff in 2019 without incident. Plaintiff was given the 9 opportunity to move to a single cell in a different housing unit, but declined, indicating Plaintiff did not have serious safety 10 concerns. 11
12 Opp’n at 7 (citing Ex. 1 AGO 1-2, 72-84, ECF No. 15-2). 13 Therefore, the Court’s review of the record does not reveal facts to support a finding 14 that Plaintiff may succeed on the merits of his Eighth Amendment claim. Although 15 Plaintiff’s claims against Defendants Cordero and Whitman survived initial screening, the 16 Court’s determination that Plaintiff may be able to state a claim against Defendants “by no 17 means demonstrates that [he] is likely to win.” Ortega v. CSP-SAC Prison Officials, No. 18 2:08–00588 SOM, 2010 WL 2598228, at *1 (D. Haw. June 7, 2010). 19 Accordingly, the Court finds this factor weighs against the issuance of a TRO or 20 preliminary injunction. 21 II. Irreparable Harm 22 An adequate showing of irreparable harm is the “single most important prerequisite 23 for the issuance of a [TRO].” Universal Semiconductor, Inc. v. Tuoi Vo, No. 5:16-CV- 24 04778-EJD, 2016 WL 9211685, at *2 (N.D. Cal. Nov. 29, 2016) (quoting Freedom 25 Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)). To successfully make that 26 showing, the moving party must “demonstrate that irreparable injury is likely in the absence 27 of an injunction.” Winter, 555 U.S. at 22 (emphasis original); see also Caribbean Marine 28 Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than 1 merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate 2 immediate threatened injury as a prerequisite to preliminary injunctive relief.” (citing L.A. 3 Mem’l Coliseum Comm’n, 634 F.2d at 1201) (emphasis in original)). 4 Here, Plaintiff generally states that he is “more likely to suffer irreparable harm if 5 placed in a double cell again.” Mot. at 2. To support this claim, Plaintiff alleges that after 6 he filed the present action, he “was sexually assaulted again on 10-24-2020 by [his] celley.” 7 Mot. at 2. However, as discussed supra in Section I, Defendant submitted evidence 8 disputing that an attack occurred in October 2020 and reflecting that Plaintiff was the 9 aggressor in the July 2019 incident that took place outside the cell. See Opp’n at 2–3; see 10 also Whitman Decl. ¶¶ 3–10. These submissions reflect that Plaintiff has been involved in 11 altercations from time to time and that the parties dispute the circumstances. This evidence 12 is insufficient to establish that Plaintiff will suffer immediate irreparable injury absent an 13 injunction. 14 The Court finds that Plaintiff’s risk of future sexual assault is not immediate at this 15 time. Without more, Plaintiff has failed to establish that he currently faces the type of 16 immediate and credible threat of irreparable harm necessary to justify extraordinary 17 injunctive relief at this stage of the case. See All. for the Wild Rockies v. Cottrell, 632 F.3d 18 1127, 1131 (9th Cir. 2011) (“Under Winter, plaintiff[ ] must establish that irreparable harm 19 is likely, not just possible.” (emphasis in original)); Goldie’s Bookstore, Inc. v. Super. Ct. 20 of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (“Speculative injury does not constitute 21 irreparable injury.”). 22 III. Balance of Equities and Public Interest 23 “When the government is a party, the last two factors (equities and public interest) 24 merge.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1271 (9th Cir. 2020). 25 States have a strong interest in the administration of their prisons. Woodford v. Ngo, 26 548 U.S. 81, 94 (2006). The Supreme Court has stated that “[i]t is difficult to imagine an 27 activity in which a State has a stronger interest, or one that is more intricately bound up 28 with state laws, regulations, and procedures, than the administration of its prisons.” Preiser 1 ||v. Rodriguez, 411 U.S. 475, 491-92 (1973); see also Turner v. Safley, 482 U.S. 78, 85 2 (1987) (‘[W]here a state penal system is involved, federal courts have . . . additional reason 3 ||to accord deference to the appropriate prison authorities.”); Meachum vy. Fano, 427 U.S. 4 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of 5 || which is of acute interest to the States.”). Accordingly, Courts should give deference to 6 || prison authorities. See Turner, 482 U.S. at 84-85. 7 On the other hand, the public is served by the preservation of constitutional rights. 8 ||However, in this instance, Plaintiff has not made the requisite showing that his 9 constitutional rights have been violated. Therefore, the balance of equities and the public 10 ||interest weigh against the issuance of a TRO or preliminary injunction. 11 CONCLUSION 12 In conclusion, “a preliminary injunction is an extraordinary and drastic remedy, one 13 should not be granted unless the movant, by a clear showing, carries the burden of 14 || persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations 15 || omitted) (emphasis in original). For the reasons stated above, Plaintiff has not met his 16 || burden, and the Court DENIES Plaintiff’s Motion for TRO and Motion for Preliminary 17 || Injunction. 18 IT IS SO ORDERED. 19 Dated: February 18, 2021 . tt f te 20 on. Janis L. Sammartino 7] United States District Judge 22 23 24 25 26 27 28 9