United States District Court, W.D. Washington, Tacoma
FOR JANUARY 12, 2018
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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).
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
Plaintiff's Request to Enjoin Defendant Furst and
Institutional Defendants is Moot.
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.
Plaintiff's Request to Enjoin Defendants Light and Casey
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.”).
Plaintiff's Claim against Defendant Allbert is Unlikely