United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge.
matter comes before the Court on plaintiffs motion for an
order to compel named defendants to release and transfer his
legal documents. Dkt. 30. For the reasons set forth below,
the undersigned recommends the Court deny the
a prisoner at the Airway Heights Corrections Center, has
filed a civil rights complaint under 42 U.S.C. § 1983,
for violating his due process rights under the Fourth, Fifth,
and Fourteenth Amendments. Dkt. 14. Plaintiff alleges
defendants improperly seized his legal documents and
retaliated against him for filing a grievance. Id.
at pp. 1-2. He alleges the seizure of his documents caused
him severe financial loss and severe legal injury in regard
to his ability to meet legal deadlines. Dkt. 14, p. 2.
Plaintiff seeks the release of his legal documents, as well
as the payment of costs associated with this cause of action.
Id. at p. 4.
motion for an order to compel named defendants to release and
transfer his legal documents, plaintiff asks for an order to
compel "the immediate transfer of all and every legal
document" belonging to him. Dkt. 30, p. 1. As defendants
point out, it is unclear if plaintiff is intending his motion
to be a motional to compel pursuant to Federal Rule of Civil
Procedure ("FRCP") 37 or a motion for injunctive
relief. In his reply to defendants' response to his
motion, plaintiff appears to be arguing it is the latter not
the former. Dkt. 35, p. 1. Either way, the Court should deny
motion to compel discovery under FRCP 37 "must include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action." FRCP 37(a)(1). Plaintiff does not deny
that he has not provided the requisite certification
(see Dkts. 34, 34-1, 35), but instead argues he is
not required to meet and confer with defense counsel, because
he exhausted the prison grievance process (Dkt. 35, p. 2).
Plaintiff is incorrect.
plaintiff must exhaust all administrative remedies prior to
filing his civil rights complaint in this Court, that is a
requirement separate and distinct from his obligations under
the federal civil discovery rules. See 42 U.S.C.
§ 1997e(a) (providing that no prisoner may bring a cause
of action under 42 U.S.C. § 1983 "until such
administrative remedies as are available are
exhausted."). Accordingly, to the extent plaintiffs
motion is construed as a motion to compel under FRCP 37, it
should be DENIED.
is possibly requesting a preliminary injunction compelling
the return of his legal documents. The test for determining
whether a plaintiff has made a sufficient showing for the
Court to grant preliminary injunctive relief is:
(1) a strong likelihood of success on the merits, (2) the
possibility of irreparable injury to plaintiff if the
preliminary relief is not granted, (3) a balance of hardships
favoring the plaintiff, and (4) advancement of the public
interest (in certain cases).
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). In the alternative, the plaintiff may obtain
such relief by showing either: (a) a combination of likely
success on the merits and the possibility that he or she will
suffer irreparable injury; or (b) that serious questions have
been raised as to the merits of the plaintiffs claims, and
the balance of hardships tips sharply in his or her favor.
Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.
focal point of both tests, however, is the existence and
degree of irreparable injury. Oakland Tribune, Inc., v.
Chronicle Publ'g Co., 762 F.2d 1374, 1376 (9th
Cir.1985). If the party seeking preliminary injunctive relief
has not shown irreparable harm, the request for such relief
may be denied on that basis alone. Ctr. for Food Safety
v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011);
Oakland Tribune, Inc., 762 F.2d at 1376
("[u]nder any formulation" of the above tests, the
moving party "must demonstrate that there exists a
significant threat of irreparable injury").
injury does not constitute irreparable injury sufficient to
warrant granting preliminary relief." Caribbean
Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th
Cir. 1988). The moving party "must demonstrate immediate
threatened injury as a prerequisite to preliminary injunctive
relief." Id. Further, a preliminary injunction
is "an extraordinary and drastic remedy" that
"should not be granted unless the movant, by a clear
showing, carries the burden of persuasion."
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(quoting 11A C. Wright, A. Miller, & M. Kane, Federal
Practice & Procedure § 2948, pp. 129-30 (2d ed.
1995)) (emphasis added by the Supreme Court);
Winter, 555 U.S. at 9 (2008).
court must proceed with caution when considering motions for
preliminary injunctive relief in cases involving the
administration of state prisons. Turner v. Safley,
482 U.S. 78, 85 (1987); Gilmore v. California, 220
F.3d 987 (9th Cir. 2000). In addition, pursuant to the Prison
Litigation Reform Act, any grant of prospective relief in
regard to prison conditions must be narrowly drawn, extend no
further than necessary, and be the least intrusive means
necessary for correction. 18 U.S.C. § 3626(a)(1)(A);
see also Gomez v. Vernon, 255 F.3d 1118, 1129 (9th
plaintiff has not carried his burden of clearly demonstrating
that the facts establish the existence of irreparable harm.
Nor has plaintiff clearly demonstrated a likelihood of
success on the merits or that the balance of hardships tips
sharply in his favor. Accordingly, plaintiff is not entitled
to preliminary injunctive relief.
addition, as defendants point out, plaintiff essentially is
asking for the same relief he is seeking in his civil rights
complaint. "Before or after beginning the hearing on a
motion for a preliminary injunction, the court may advance
the trial on the merits and consolidate it with the
hearing." FRCP 65(a)(2). Plaintiff has not asked for
this, however, nor does the undersigned see any basis for
advancing the trial on the merits at this ...