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Bistryski v. Department of Health Services of Stafford Creek Corrections Center

United States District Court, W.D. Washington, Tacoma

December 22, 2017

CHRISTOPHER ANDREW BISTRYSKI, Plaintiff,
v.
DEPARTMENT OF HEALTH SERVICES OF STAFFORD CREEK CORRECTIONS CENTER, et al., Defendants.

         NOTED FOR JANUARY 12, 2018

          REPORT AND RECOMMENDATION

          THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding with this action pro se and in forma pauperis. Plaintiff filed a motion for a temporary restraining order and preliminary injunction on September 27, 2017. Dkt. 24. The undersigned recommends that the Court deny the motion because it is moot as to all defendants except Advanced Registered Nurse Practitioner (ARNP) Sheryl Allbert and Plaintiff's claim against ARNP Allbert is unlikely to succeed.

         BACKGROUND

         Mr. Bistryski is incarcerated at the Monroe Correctional Complex-Special Offender Unit (MCC-SOU). He sues multiple defendants including individuals Michael Furst, Scott Light, Charles Casey, and Sheryl Allbert, along with DOC Health Services of Stafford Creek Corrections Center, DOC Health Services of Monroe Corrections Center Special Offender Center, and the Medical Care Review Committee. Plaintiff asks for damages and injunctive relief, asserting that defendants have violated his right to adequate medical care under the Eighth Amendment. Dkt. 6, at pp. 4, 6-14.

         DISCUSSION

         The basic function of preliminary injunctive relief is to preserve the status quo ante litem pending a determination of the action on the merits. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). The standards for issuing temporary restraining orders are “substantially identical” to the standards for issuing preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

         Parties seeking injunctive relief must show that they are likely to succeed on the merits, that they are likely to suffer irreparable harm without preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has set forth a “serious questions” variation of this standard, under which “a preliminary injunction is proper if there are serious questions going to the merits; there is a likelihood of irreparable injury to the plaintiff; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012).

         Under either framing, preliminary injunctive relief is “‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Lopez, 680 F.3d at 1072 (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). To fulfill the “irreparable harm” requirement, the moving party “must do more than merely allege imminent harm, ” but “must demonstrate immediate threatened injury.” Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).

         A. Plaintiff's Request to Enjoin Defendant Furst and Institutional Defendants is Moot.

         In separate Reports and Recommendations, Dkt. 33, 34, the undersigned has found that Plaintiff failed to state a claim against defendant Furst and against the institutional defendants. Accordingly, Plaintiff's motion for a temporary restraining order (TRO) and preliminary injunction is moot as to those defendants.

         B. Plaintiff's Request to Enjoin Defendants Light and Casey is Moot.

         Defendants Light and Casey work at Stafford Creek Corrections Center (SCCC). See Dkt. 6, pp. 6-7. Plaintiff was transferred to MCC-SOU in July 2015. See Dkt. 6, p. 8. There is no indication from the record that Mr. Light or Lieutenant Casey have any ability to influence Plaintiff's present treatment. Plaintiff's request that the Court order those defendants to provide him with certain care is therefore moot. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility. . . . We, therefore, agree that Nelson's action for injunctive relief against the [officials at plaintiff's former prison] has become moot.”).

         C. Plaintiff's Claim against Defendant Allbert is Unlikely ...


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