United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Theresa L. Fricke, United States Magistrate Judge
William Womack, a prisoner at Washington State Penitentiary,
has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. Dkt. 4, 5. This matter has been referred
to Magistrate Judge Theresa L. Fricke pursuant to 28 U.S.C.
§ 636(b)(1) and Local Magistrates Rules MJR 3 and 4.
After reviewing the Petition, the Court directed petitioner
and respondent to submit additional briefing on the issue of
exhaustion and re-noted the petition for consideration on
June 8, 2018. Dkt. 15. Respondent has filed additional
briefing in response to that order. Dkt. 17. Under the order,
petitioner's briefing is due June 1, 2018. Dkt. 15.
before the Court is petitioner's motion for a temporary
restraining order and a preliminary injunction. Dkt. 18, 19.
In an affidavit, petitioner states that he received notice on
March 29, 2018, of a change in prison policy that prohibits
offenders who are not following a special process from
bringing documents into the law library, with the exception
of a single piece of paper. Dkt. 18-1, p. 2; Dkt. 19, p. 2.
Petitioner contends that this rule violates the state and
federal constitutions and in effect prevents offenders from
performing legal work on behalf of themselves and each other.
Dkt. 18, 19. Petitioner seeks an order declaring that the new
policy is unconstitutional and enjoining respondents from
enforcing it. Dkt. 18, p. 7.
discussed below, the relief petitioner seeks is not available
in a habeas corpus proceeding. Accordingly, the undersigned
recommends that the Court deny petitioner's motion for
preliminary injunctive relief. However, in a separate minute
order the Court will provide a three-week extension of time
for petitioner to submit supplemental briefing on exhaustion.
contends that petitioner's request for preliminary
injunctive relief within this habeas corpus proceeding is
improper because such relief is not an available remedy under
28 U.S.C. § 2254. Dkt. 20. The undersigned agrees. A
habeas corpus action is “the proper mechanism for a
prisoner to challenge” the fact or duration of his
confinement. Badea v. Cox, 931 F.2d 573, 574 (9th
Cir. 1991); Tucker v. Carlson, 925 F.2d 330, 332
(9th Cir. 1991); Crawford v. Bell, 599 F.2d 890, 891
(9th Cir. 1979). On the other hand, a claim challenging a
prisoner's conditions of confinement is properly brought
under 28 U.S.C. § 1983. See McCarthy v.
Bronson, 500 U.S. 136, 141-142 (1991); Preiser v.
Rodriguez, 411 U.S. 475, 499 (1973); see Malchi v.
Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (interpreting
seeks injunctive relief based on his conditions of
confinement-the conditions placed on his use of the law
library-and not on a challenge to the fact or duration of his
confinement. Dkt. 18, 19. The appropriate vehicle for his
request, therefore, is an action brought under Section 1983.
Accordingly, the undersigned recommends that the motion for a
temporary restraining order be denied.
petitioner properly presented his request for injunctive
relief in this action, that request would still fail to
demonstrate that such relief is warranted.
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).
contentions of future injury are, at this time, only
theoretical. Indeed, petitioner demonstrated his ability to
litigate effectively by presenting cogent and appropriately
cited arguments in support of his motion for injunctive
relief even after the challenged restrictions were put in
place. Dkt. 18, pp. 1-7. And given the exhaustion concerns
the Court highlighted in its order, Dkt. 15, petitioner has
not shown a likelihood of success on the underlying habeas
the Prison Litigation Reform Act mandates that
“[p]reliminary injunctive relief must be narrowly
drawn, extend no further than necessary to correct the harm
the court finds requires preliminary relief, and be the least
intrusive means necessary to correct that harm.” 18
U.S.C. § 3626(a)(2). The relief the petitioner requests
here would not be narrowly drawn to correct the asserted harm
of preventing him from effectively completing his
supplemental briefing in this habeas action. In a separate
minute order, the Court will address petitioner's concern
in a more narrowly tailored manner, by granting a three-week
extension to complete that briefing.
Womack requests relief that is not appropriate in a habeas
action and has not satisfied the requirements for obtaining
preliminary injunctive relief, the undersigned recommends
that the motion for a temporary restraining order or
preliminary injunction be DENIED.
to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure (“FRCP”), the parties
shall have fourteen (14) days from service of this Report and
Recommendation to file written objections. See also
FRCP 6. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v.
Arn, 474 U.S. 140 (1985). Accommodating the time limit