1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TEVIN LEE HARRIS, 11 Case No. 20-02523 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION AND v. SUPPLEMENTAL MOTION FOR 13 TEMPORARY RESTRAINING ORDER B. RAMIREZ, 14
Defendant. 15 (Docket Nos. 6, 9) 16
17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against a correctional officer at Salinas Valley State Prison (“SVSP”), 20 where he is currently housed. Dkt. No. 1.1 Plaintiff has recently filed a motion for an 21 “emergent request and urgent request for judicial and or request for injunction relief.” Dkt. 22 No. 6. Plaintiff subsequently filed a “supplemented motion for injunction pursuant to Fed. 23 R. C.P. 65(a).” Dkt. No. 9. The Court construes these papers as motions for a preliminary 24 injunction under Rule 65(a) and/or temporary restraining order (“TRO”) under Rule 65(b). 25 /// 26 /// 27 1 DISCUSSION 2 A. Plaintiff’s Claims 3 Plaintiff’s complaint alleges that on December 21, 2021, Defendant Ramirez used 4 excessive force when he sprayed Plaintiff with pepper spray, and that Defendant Ramirez 5 did so in retaliation for Plaintiff filing grievances against him and other officers. Dkt. No. 6 1 at 2-3. The Court notes that Plaintiff does not describe the exact circumstances under 7 which he was pepper sprayed. Id. 8 In his Rule 65 motion, Plaintiff claims Defendant Ramirez along with other SVSP 9 officials again used excessive force, i.e., sprayed him with pepper spray, on March 16, 10 2022, also in retaliation. Dkt. No. 6 at 2. Plaintiff claims additional officials are failing to 11 protect and intervene. Id. According to the copy of the Rules Violation Report (“RVR”) 12 that Plaintiff provides with his supplemental TRO motion, Defendant Ramirez charged 13 Plaintiff with “battery on a peace officer,” after Plaintiff failed to submit to restraints 14 (handcuffs) and grabbed Defendant’s baton from within his cell. Dkt. No. 9 at 5. Plaintiff 15 asserts that court intervention is necessary “to protect [him]” from a “substantial threat of 16 irreparable harm.” Id. at 3. 17 B. Rule 65 – Injunctions and Restraining Orders 18 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a 19 preliminary injunction or temporary restraining order (“TRO”). Prior to granting a 20 preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 21 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the 22 parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). 23 Accordingly, the motion for a preliminary injunction shall not be decided until Defendant 24 has been served in this action and given an opportunity to be heard. 25 On the other hand, a TRO may be granted under Rule 65(b) without written or oral 26 notice to the adverse party or that party’s attorney only if: (1) it clearly appears from 1 irreparable injury, loss or damage will result to the applicant before the adverse party or 2 the party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies in 3 writing the efforts, if any, which have been made to give notice and the reasons supporting 4 the claim that notice should not be required. See Fed. R. Civ. P. 65(b). 5 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 6 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 7 Lopez v. Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis 8 in original). The standard for issuing a TRO is similar to that required for a preliminary 9 injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 10 1008 (9th Cir. 1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary 11 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 12 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 13 favor, and that an injunction is in the public interest.” Winter v. Natural Resources 14 Defense Council, Inc., 555 U.S. 7, 20 (2008). Where the court concludes the movant has 15 failed to show a likelihood of success on the merits, the court, in its discretion, need not 16 consider whether the movant would suffer irreparable injury. Guzman v. Shewry, 552 F.3d 17 941, 948 (9th Cir. 2009). 18 Here, Plaintiff’s TRO motion is deficient because he has not satisfied the second 19 requirement under Rule 65(b), i.e., certified in writing the efforts, if any, which have been 20 made to give notice and the reasons supporting the claim that notice should not be 21 required. See Fed. R. Civ. P. 65(b)(1)(B). There is only one Defendant named in this 22 action: Correctional Officer B. Ramirez. Dkt. No. 1 at 2. Plaintiff merely states that 23 Defendant Ramirez “has been served said civil complaint,” but provides no explanation as 24 to how or when Defendant was noticed with this action and Plaintiff’s TRO motion. Dkt. 25 No. 9 at 2. The only “proof of service” Plaintiff provides is the mailing of his documents 26 to this Court. Id. at 3. Accordingly, the Court is not persuaded that Plaintiff has satisfied 1 Furthermore, even if it could be said that Plaintiff has satisfied Rule 65(b), Plaintiff 2 has failed to establish all the factors under Winter to warrant a TRO at this time. First of 3 all, he mentions the Winter factors in his motion without presenting any legal arguments. 4 Dkt. No. 9 at 2-3. Moreover, Plaintiff has failed to establish likelihood of success on the 5 merits, which is the first Winter’s factor. The copy of the RVR attached to Plaintiff’s TRO 6 motion indicates that the recent use of force on March 16, 2022, may have been justified. 7 Dkt. No. 9 at 5. Contrary to Plaintiff’s assertion that Defendant Ramirez acted without 8 provocation and only in retaliation, the RVR indicates that this was not the case. Rather, 9 the report states that Plaintiff did not comply to Defendant’s orders to be handcuffed 10 through the food port but instead reached out and grabbed Defendant’s baton, thereafter 11 refusing to comply with Defendant’s order to “get down.” Id. Chemical agents were used 12 to subdue Plaintiff after he refused to comply. Id. It appears, therefore, that Defendant’s 13 use of force was justified by Plaintiff’s aggressive behavior and failure to comply, such 14 that Plaintiff’s rights were not violated.2 If the use of force on December 21, 2021, which 15 is the basis for this action, were under similar circumstances, i.e., Plaintiff was not 16 complying with direct orders, then Defendant Ramirez’s use of force at that time may also 17 have been justified. However, Plaintiff has provided no specific description of the 18 circumstances of the December 21, 2021 incident for the Court to determine whether 19 Defendant’s use of force could be considered excessive. Dkt. No. 1 at 2-3.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TEVIN LEE HARRIS, 11 Case No. 20-02523 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION AND v. SUPPLEMENTAL MOTION FOR 13 TEMPORARY RESTRAINING ORDER B. RAMIREZ, 14
Defendant. 15 (Docket Nos. 6, 9) 16
17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against a correctional officer at Salinas Valley State Prison (“SVSP”), 20 where he is currently housed. Dkt. No. 1.1 Plaintiff has recently filed a motion for an 21 “emergent request and urgent request for judicial and or request for injunction relief.” Dkt. 22 No. 6. Plaintiff subsequently filed a “supplemented motion for injunction pursuant to Fed. 23 R. C.P. 65(a).” Dkt. No. 9. The Court construes these papers as motions for a preliminary 24 injunction under Rule 65(a) and/or temporary restraining order (“TRO”) under Rule 65(b). 25 /// 26 /// 27 1 DISCUSSION 2 A. Plaintiff’s Claims 3 Plaintiff’s complaint alleges that on December 21, 2021, Defendant Ramirez used 4 excessive force when he sprayed Plaintiff with pepper spray, and that Defendant Ramirez 5 did so in retaliation for Plaintiff filing grievances against him and other officers. Dkt. No. 6 1 at 2-3. The Court notes that Plaintiff does not describe the exact circumstances under 7 which he was pepper sprayed. Id. 8 In his Rule 65 motion, Plaintiff claims Defendant Ramirez along with other SVSP 9 officials again used excessive force, i.e., sprayed him with pepper spray, on March 16, 10 2022, also in retaliation. Dkt. No. 6 at 2. Plaintiff claims additional officials are failing to 11 protect and intervene. Id. According to the copy of the Rules Violation Report (“RVR”) 12 that Plaintiff provides with his supplemental TRO motion, Defendant Ramirez charged 13 Plaintiff with “battery on a peace officer,” after Plaintiff failed to submit to restraints 14 (handcuffs) and grabbed Defendant’s baton from within his cell. Dkt. No. 9 at 5. Plaintiff 15 asserts that court intervention is necessary “to protect [him]” from a “substantial threat of 16 irreparable harm.” Id. at 3. 17 B. Rule 65 – Injunctions and Restraining Orders 18 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a 19 preliminary injunction or temporary restraining order (“TRO”). Prior to granting a 20 preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 21 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the 22 parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). 23 Accordingly, the motion for a preliminary injunction shall not be decided until Defendant 24 has been served in this action and given an opportunity to be heard. 25 On the other hand, a TRO may be granted under Rule 65(b) without written or oral 26 notice to the adverse party or that party’s attorney only if: (1) it clearly appears from 1 irreparable injury, loss or damage will result to the applicant before the adverse party or 2 the party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies in 3 writing the efforts, if any, which have been made to give notice and the reasons supporting 4 the claim that notice should not be required. See Fed. R. Civ. P. 65(b). 5 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 6 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 7 Lopez v. Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis 8 in original). The standard for issuing a TRO is similar to that required for a preliminary 9 injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 10 1008 (9th Cir. 1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary 11 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 12 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 13 favor, and that an injunction is in the public interest.” Winter v. Natural Resources 14 Defense Council, Inc., 555 U.S. 7, 20 (2008). Where the court concludes the movant has 15 failed to show a likelihood of success on the merits, the court, in its discretion, need not 16 consider whether the movant would suffer irreparable injury. Guzman v. Shewry, 552 F.3d 17 941, 948 (9th Cir. 2009). 18 Here, Plaintiff’s TRO motion is deficient because he has not satisfied the second 19 requirement under Rule 65(b), i.e., certified in writing the efforts, if any, which have been 20 made to give notice and the reasons supporting the claim that notice should not be 21 required. See Fed. R. Civ. P. 65(b)(1)(B). There is only one Defendant named in this 22 action: Correctional Officer B. Ramirez. Dkt. No. 1 at 2. Plaintiff merely states that 23 Defendant Ramirez “has been served said civil complaint,” but provides no explanation as 24 to how or when Defendant was noticed with this action and Plaintiff’s TRO motion. Dkt. 25 No. 9 at 2. The only “proof of service” Plaintiff provides is the mailing of his documents 26 to this Court. Id. at 3. Accordingly, the Court is not persuaded that Plaintiff has satisfied 1 Furthermore, even if it could be said that Plaintiff has satisfied Rule 65(b), Plaintiff 2 has failed to establish all the factors under Winter to warrant a TRO at this time. First of 3 all, he mentions the Winter factors in his motion without presenting any legal arguments. 4 Dkt. No. 9 at 2-3. Moreover, Plaintiff has failed to establish likelihood of success on the 5 merits, which is the first Winter’s factor. The copy of the RVR attached to Plaintiff’s TRO 6 motion indicates that the recent use of force on March 16, 2022, may have been justified. 7 Dkt. No. 9 at 5. Contrary to Plaintiff’s assertion that Defendant Ramirez acted without 8 provocation and only in retaliation, the RVR indicates that this was not the case. Rather, 9 the report states that Plaintiff did not comply to Defendant’s orders to be handcuffed 10 through the food port but instead reached out and grabbed Defendant’s baton, thereafter 11 refusing to comply with Defendant’s order to “get down.” Id. Chemical agents were used 12 to subdue Plaintiff after he refused to comply. Id. It appears, therefore, that Defendant’s 13 use of force was justified by Plaintiff’s aggressive behavior and failure to comply, such 14 that Plaintiff’s rights were not violated.2 If the use of force on December 21, 2021, which 15 is the basis for this action, were under similar circumstances, i.e., Plaintiff was not 16 complying with direct orders, then Defendant Ramirez’s use of force at that time may also 17 have been justified. However, Plaintiff has provided no specific description of the 18 circumstances of the December 21, 2021 incident for the Court to determine whether 19 Defendant’s use of force could be considered excessive. Dkt. No. 1 at 2-3. As such, it 20 cannot be said that Plaintiff has carried his burden of persuasion that he is likely to succeed 21 on the merits of his excessive force claim against Defendant Ramirez. Therefore, the 22 Court finds that Plaintiff has not established by a clear showing that he merits the granting 23 of this extraordinary remedy. See Lopez, 680 F.3d at 1072. 24 Lastly, Plaintiff seeks a TRO against non-parties. An injunction is binding only on 25 2 Although Plaintiff states that this RVR was “dismissed,” Dkt. No. 9 at 1, he does not 26 explain why it was dismissed. An RVR can be dismissed for reasons having nothing to do 1 || parties to the action, their officers, agents, servants, employees and attorneys and those “in 2 || active concert or participation” with them. Fed. R. Civ. P. 65(d). In order to enforce an 3 || injunction against an entity, the district court must have personal jurisdiction over that 4 || entity. In re Estate of Ferdinand Marcos, 94 F.3d 539, 545 (9th Cir. 1996). The court 5 || should not issue an injunction that it cannot enforce. /d. None of the other named 6 || individuals in the TRO motion are parties to this action. Dkt. Nos. 6, 9. Therefore, the 7 || Court has no jurisdiction over these non-parties to enforce a restraining order. 8 9 CONCLUSION 10 For the reasons discussed above, Plaintiff’s motion for a TRO is DENIED as || without merit. Dkt. Nos. 6, 9. The Court will order briefing on Plaintiff's motion for «= 12 |} preliminary injunction when the action is served on Defendant. 5 13 This order terminates Docket Nos. 6 and 9. 14 IT IS SO ORDERED.
15 || Dated: April 21, 2022 heh hur homer BETH LABSON FREEMAN 16 United States District Judge
Oo Z 18 19 20 21 22 23 24 Order Denying TRO 25 PRO-SE\BLF\CR.22\01568Harris_deny.tro 26 27