1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL C. HAMILTON, Case No. 19-cv-06319-EMC
8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. INTERIM RELIEF
10 RON DAVIS, et al., Docket No. 11 11 Defendants.
12 13 14 I. INTRODUCTION 15 Paul Hamilton, an inmate at San Quentin State Prison, filed this pro se prisoner’s civil 16 rights action under 42 U.S.C. § 1983. In an order filed December 20, 2019, the Court ordered Mr. 17 Hamilton to show cause why the action should not be dismissed under 28 U.S.C. § 1915(g) 18 because Mr. Hamilton has filed more than three previous actions that were dismissed as frivolous, 19 malicious, or for failure to state a claim upon which relief may be granted. Mr. Hamilton’s 20 response to the order to show cause is due by January 24, 2020. In the meantime, Mr. Hamilton 21 has filed a request for an “emergency temporary injunction,” Docket No. 11, that is now before the 22 Court for consideration. 23 II. BACKGROUND 24 In his complaint in this action, Mr. Hamilton alleges the following: Mr. Hamilton takes 25 hydrochlorothiazide for hypertension, a medication that causes him to urinate frequently, 26 especially at night; his urine has an odor. Docket No. 1 at 3. After he urinates, he flushes the 27 toilet in his cell. Id. The frequent nocturnal urination and toilet-flushing has “caused many 1 the cell at nights.” Id. Four cellmates have moved out. Id. Mr. Hamilton worries that he or his 2 cellmates might become violent due to the urinating and the toilet-flushing, although no physical 3 violence has occurred or been threatened. See id. at 4. Mr. Hamilton filed a request for a 4 reasonable accommodation under the Americans With Disabilities Act (ADA) and the Armstrong 5 Remedial Plan (ARP), seeking a single cell due to his frequent urination. On August 29, 2019, the 6 prison’s Reasonable Accommodation Panel rejected his request, determining that his request “did 7 not meet any ADA/ARP criteria.” Docket No. 1 at 7. The response noted that Mr. Hamilton had 8 been “evaluated by [his] Primary Care Clinician on August 21, 2019 and it was determined [his] 9 medical conditions or prescribed medications do not exclude [him] from double cell housing.” Id. 10 7. Mr. Hamilton admits in his complaint that he did not exhaust his administrative remedies 11 before filing this action. See id. at 1-2. 12 In his request for an “emergency temporary injunction,” Mr. Hamilton states that, due to 13 his urinating and toilet-flushing about 5-6 times per night, the situation has “worsened to the point 14 of inmates just up and leaving the cell . . . without incident thus far.” Docket No. 11 at 1. He 15 states that his activities wake up cellmates “to a grumpy encounter,” and 3-4 inmates “chose to 16 just leave” over the last several months. Id. at 2. According to Mr. Hamilton, there is “no telling 17 what could occur in the middle of the night with an irate cellmate who feels he is being 18 disrespected.” Mr. Hamilton seeks a temporary restraining order/preliminary injunction 19 compelling prison officials to give him a single cell until this action has been fully litigated. 20 III. DISCUSSION 21 A temporary restraining order preserves the status quo and prevents irreparable harm until 22 a hearing can be held on a preliminary injunction application. See Granny Goose Foods, Inc. v. 23 Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). A temporary 24 restraining order (TRO) is an “extraordinary remedy” that a court should award only when a 25 plaintiff makes a clear showing that he is entitled to such relief. See Winter v. Natural Res. 26 Defense Council, Inc., 555 U.S. 7, 24 (2008). The standards for a TRO are the same as those for a 27 preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 1 merits, (2) a likelihood of irreparable harm that will result if an injunction is not issued, (3) the 2 balance of equities tips in favor of the plaintiff, and (4) an injunction is in the public interest. See 3 Winter, 555 U.S. at 20.1 The irreparable injury must be both likely and immediate. See id. at 22; 4 Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff 5 must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must 6 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”) 7 Mr. Hamilton is not entitled to a TRO or preliminary injunction compelling prison officials 8 to house him in a single cell. There are several problems with his request. First, the evidentiary 9 support for the requested TRO falls short of showing that irreparable harm is likely and imminent 10 if interim relief is not granted. Mr. Hamilton’s verified request provides no specific information 11 about any actual threat to his physical safety. Indeed, he admits that he does not know whether 12 harm will befall him, as he states under penalty of perjury that there is “no telling what could 13 occur” if a cellmate becomes irate about the nocturnal urination and toilet-flushing. Docket No. 14 11 at 2. The circumstances described in his complaint and request simply do not show that 15 irreparable harm is likely and imminent if he is not single-celled. Mr. Hamilton’s filings show 16 that the frequent urination/toilet flushing situation has existed for about a year and that cellmates 17 have responded with some verbal complaints and perhaps by moving to other cells. Although past 18 results are not a guarantee of future results, the absence of any violence in the past year weighs 19 against a finding that violence is likely or imminent. 20 Second, Mr. Hamilton has not shown a likelihood of success on the merits of this action. 21 His admitted failure to exhaust administrative remedies before filing this action makes it quite 22
23 1 Winter did not, however, completely reject the validity of the sliding scale approach to preliminary injunctions. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 24 2011). Under the “sliding scale” approach used in the Ninth Circuit – also dubbed the “serious question” test in Alliance for Wild Rockies -- “the elements of the preliminary injunction test are 25 balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131. Thus, even after Winter, “‘serious questions going to the merits’ and a hardship balance 26 that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132 (citations omitted). The portion of the 27 sliding-scale test that allowed injunctive relief upon the possibility, as opposed to likelihood, of 1 unlikely that he will prevail on the merits in this action. The requirement that prisoners exhaust 2 administrative remedies, see 42 U.S.C. § 1997e(a), is mandatory. Ross v. Blake, 136 S. Ct. 1850, 3 1856 (2016). Courts may not create their own “special circumstances” exceptions to the 4 exhaustion requirement. Id.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL C. HAMILTON, Case No. 19-cv-06319-EMC
8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. INTERIM RELIEF
10 RON DAVIS, et al., Docket No. 11 11 Defendants.
12 13 14 I. INTRODUCTION 15 Paul Hamilton, an inmate at San Quentin State Prison, filed this pro se prisoner’s civil 16 rights action under 42 U.S.C. § 1983. In an order filed December 20, 2019, the Court ordered Mr. 17 Hamilton to show cause why the action should not be dismissed under 28 U.S.C. § 1915(g) 18 because Mr. Hamilton has filed more than three previous actions that were dismissed as frivolous, 19 malicious, or for failure to state a claim upon which relief may be granted. Mr. Hamilton’s 20 response to the order to show cause is due by January 24, 2020. In the meantime, Mr. Hamilton 21 has filed a request for an “emergency temporary injunction,” Docket No. 11, that is now before the 22 Court for consideration. 23 II. BACKGROUND 24 In his complaint in this action, Mr. Hamilton alleges the following: Mr. Hamilton takes 25 hydrochlorothiazide for hypertension, a medication that causes him to urinate frequently, 26 especially at night; his urine has an odor. Docket No. 1 at 3. After he urinates, he flushes the 27 toilet in his cell. Id. The frequent nocturnal urination and toilet-flushing has “caused many 1 the cell at nights.” Id. Four cellmates have moved out. Id. Mr. Hamilton worries that he or his 2 cellmates might become violent due to the urinating and the toilet-flushing, although no physical 3 violence has occurred or been threatened. See id. at 4. Mr. Hamilton filed a request for a 4 reasonable accommodation under the Americans With Disabilities Act (ADA) and the Armstrong 5 Remedial Plan (ARP), seeking a single cell due to his frequent urination. On August 29, 2019, the 6 prison’s Reasonable Accommodation Panel rejected his request, determining that his request “did 7 not meet any ADA/ARP criteria.” Docket No. 1 at 7. The response noted that Mr. Hamilton had 8 been “evaluated by [his] Primary Care Clinician on August 21, 2019 and it was determined [his] 9 medical conditions or prescribed medications do not exclude [him] from double cell housing.” Id. 10 7. Mr. Hamilton admits in his complaint that he did not exhaust his administrative remedies 11 before filing this action. See id. at 1-2. 12 In his request for an “emergency temporary injunction,” Mr. Hamilton states that, due to 13 his urinating and toilet-flushing about 5-6 times per night, the situation has “worsened to the point 14 of inmates just up and leaving the cell . . . without incident thus far.” Docket No. 11 at 1. He 15 states that his activities wake up cellmates “to a grumpy encounter,” and 3-4 inmates “chose to 16 just leave” over the last several months. Id. at 2. According to Mr. Hamilton, there is “no telling 17 what could occur in the middle of the night with an irate cellmate who feels he is being 18 disrespected.” Mr. Hamilton seeks a temporary restraining order/preliminary injunction 19 compelling prison officials to give him a single cell until this action has been fully litigated. 20 III. DISCUSSION 21 A temporary restraining order preserves the status quo and prevents irreparable harm until 22 a hearing can be held on a preliminary injunction application. See Granny Goose Foods, Inc. v. 23 Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). A temporary 24 restraining order (TRO) is an “extraordinary remedy” that a court should award only when a 25 plaintiff makes a clear showing that he is entitled to such relief. See Winter v. Natural Res. 26 Defense Council, Inc., 555 U.S. 7, 24 (2008). The standards for a TRO are the same as those for a 27 preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 1 merits, (2) a likelihood of irreparable harm that will result if an injunction is not issued, (3) the 2 balance of equities tips in favor of the plaintiff, and (4) an injunction is in the public interest. See 3 Winter, 555 U.S. at 20.1 The irreparable injury must be both likely and immediate. See id. at 22; 4 Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff 5 must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must 6 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”) 7 Mr. Hamilton is not entitled to a TRO or preliminary injunction compelling prison officials 8 to house him in a single cell. There are several problems with his request. First, the evidentiary 9 support for the requested TRO falls short of showing that irreparable harm is likely and imminent 10 if interim relief is not granted. Mr. Hamilton’s verified request provides no specific information 11 about any actual threat to his physical safety. Indeed, he admits that he does not know whether 12 harm will befall him, as he states under penalty of perjury that there is “no telling what could 13 occur” if a cellmate becomes irate about the nocturnal urination and toilet-flushing. Docket No. 14 11 at 2. The circumstances described in his complaint and request simply do not show that 15 irreparable harm is likely and imminent if he is not single-celled. Mr. Hamilton’s filings show 16 that the frequent urination/toilet flushing situation has existed for about a year and that cellmates 17 have responded with some verbal complaints and perhaps by moving to other cells. Although past 18 results are not a guarantee of future results, the absence of any violence in the past year weighs 19 against a finding that violence is likely or imminent. 20 Second, Mr. Hamilton has not shown a likelihood of success on the merits of this action. 21 His admitted failure to exhaust administrative remedies before filing this action makes it quite 22
23 1 Winter did not, however, completely reject the validity of the sliding scale approach to preliminary injunctions. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 24 2011). Under the “sliding scale” approach used in the Ninth Circuit – also dubbed the “serious question” test in Alliance for Wild Rockies -- “the elements of the preliminary injunction test are 25 balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131. Thus, even after Winter, “‘serious questions going to the merits’ and a hardship balance 26 that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132 (citations omitted). The portion of the 27 sliding-scale test that allowed injunctive relief upon the possibility, as opposed to likelihood, of 1 unlikely that he will prevail on the merits in this action. The requirement that prisoners exhaust 2 administrative remedies, see 42 U.S.C. § 1997e(a), is mandatory. Ross v. Blake, 136 S. Ct. 1850, 3 1856 (2016). Courts may not create their own “special circumstances” exceptions to the 4 exhaustion requirement. Id. (reversing Fourth Circuit’s ruling that failure to exhaust was justified 5 where prisoner reasonably—even though mistakenly—believed he had exhausted remedies). This 6 Court cannot simply ignore the nonexhaustion of administrative remedies by Mr. Hamilton to 7 reach the merits of his Eighth Amendment claim. Cf. Farmer v. Brennan, 511 U.S. 825, 847 8 (1994) (“[w]hen a prison inmate seeks injunctive relief, a court need not ignore the inmate’s 9 failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses 10 such procedures may properly be compelled to pursue them.”) 11 Third, Mr. Hamilton has not shown a likelihood of success on the merits for the separate 12 reason that his Eighth Amendment claim as presently alleged is weak on its face. The Eighth 13 Amendment requires that prison officials take reasonable measures to protect prisoners from 14 violence at the hands of other prisoners. See Farmer, 511 U.S. at 832; see id. at 834 (in failure-to- 15 protect context, the prisoner must show (1) “that he is incarcerated under conditions posing a 16 substantial risk of serious harm,” and (2) the prison official is, subjectively, deliberately indifferent 17 to the prisoner’s health or safety). Mr. Hamilton has not shown that there is a “substantial risk of 18 serious harm” to him. In the last year, words have been spoken and cellmates have moved away, 19 but Mr. Hamilton does not indicate that any of them have done or threatened anything physical to 20 him. A prisoner does not need to wait to be attacked to press an Eighth Amendment claim, but 21 there must still be a substantial risk of serious harm before a constitutional claim is stated. See id. 22 at 845. His failure to show a likelihood of success on the merits weighs against the issuance of a 23 TRO or preliminary injunction. 24 Finally, Mr. Hamilton does not show the need for a TRO without any notice to Defendants, 25 who have not yet been served with process in this action. Federal Rule of Civil Procedure 26 65(b)(1) provides that a TRO can issue without notice to adverse party only if “specific facts in an 27 affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or 1 movant certifies in writing the efforts to give notice and the reasons why notice should not be 2 || required. These stringent requirements “reflect the fact that our entire jurisprudence runs counter 3 || to the notion of court action taken before reasonable notice and an opportunity to be heard has 4 || been granted both sides of a dispute.” Granny Goose, 415 U.S. at 423. Additionally, Mr. 5 Hamilton does not provide any information about his efforts to give notice to Defendants, as he 6 || must under Rule 65(b)(1) and why such notice should not be given. His failure to satisfy Rule 7 65(b)(1) is fatal to his ex parte request. 8 IV. CONCLUSION 9 For the foregoing reasons, Plaintiff's ex parte request for a TRO or injunction is DENIED. 10 || Docket No. 11. 11 12 IT IS SO ORDERED.
14 Dated: January 10, 2020
16 Sy 5 ED M. CHE nited States District Judge 18 19 20 21 22 23 24 25 26 27 28