Opinion
2:12-CV-1222 JCM (VCF)
10-16-2012
PERCY LAVAE BACON, Plaintiff(s), v. OSWALD REYES, Defendant(s).
ORDER
Presently before the court is plaintiff, appearing pro se, Percy Lavae Bacon's motion for a temporary restraining order. (Doc. # 22). Defendants have not filed a response.
According to Federal Rule of Civil Procedure 65, a court may issue a temporary restraining order when the moving party provides specific facts showing that immediate and irreparable injury, loss, or damage will result before the adverse party's opposition to a motion for preliminary injunction can be heard. Fed.R.Civ.P.65. "The purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment." Miller v. Rufion, No. 08-1233, 2009 WL 348176, at *1 (E.D. Cal. Feb. 11, 2009) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). "Thus, in seeking a temporary restraining order, the movant must demonstrate that the denial of relief will expose him to some significant risk of irreparable injury." Id. (quoting Associated Gen. Contractors of California v. Coalition of Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).
In plaintiff's motion, he alleges that his constitutional rights have been violated because he can no longer personally microwave his own food. (See doc. # 22). The new policy appears to be that the prison utilizes "microwave porters" to heat up food for the prisoners. (See id.).The old policy apparently allowed inmates to personally microwave their own food. (See id.). Plaintiff seeks this temporary restraining order because of the alleged threat of unsanitary and disease carrying porters. (See id.). Plaintiff alleges this new policy is "cruel and unusual," an "equal protection violation," and violates "the protection[s] of the United States Constitution." (See id.).
Plaintiff must establish real and immediate irreparable harm before this court may grant a temporary restraining order. Plaintiff has not met that high burden. Based on the facts presented, plaintiff's alleged injuries do not establish the requisite immediacy to warrant a temporary restraining order.
When considering penological interests, the court should first determine the reasonableness of the regulation. See Turner v. Safely, 482 U.S. 78, 89-90 (1987). Because plaintiff filed the instant motion seeking a temporary restraining order, the prison has not yet had the opportunity to justify its microwave regulations. (See doc. # 22). However, plaintiff also filed the exact same motion seeking a permanent injunction. (Doc. # 23). The court finds it appropriate to permit the prison to respond to these allegations via the normal briefing schedule of a permanent injunction.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff's motion for a temporary restraining order (doc. # 22) be, and the same hereby is, DENIED.
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UNITED STATES DISTRICT JUDGE