United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE AND ESTABLISHING BRIEFER
Theresa L. Fricke, United States Magistrate Judge.
Thursday, September 26, 2019, plaintiff filed a motion for an
"Order to Show Cause for a Preliminary Injunction and
Temporary Restraining Order." Dkt. 28. Plaintiff claims
that he was denied medical attention for "seeing
splotches and spitting blood" on September 15, 2019, and
that he fears for his life if he should wait to bring his
request for medical attention through the grievance system.
Id. at 2. Plaintiff alleges that his current
situation is life-threatening and requires immediate
intervention by the court. Despite the allegations of a
serious safety concern, the court may not order a preliminary
injunction or temporary restraining order ("TRO")
unless plaintiff shows that the conditions necessitating the
court's intervention stem from the claim in his
obtain a preliminary injunction or TRO, the moving party must
demonstrate: (1) he is likely to succeed on the merits; (2)
he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see also Stuhlbarg lnt'l Sales Co. v.
John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.
2001) (the same substantive standard applies to TROs and
preliminary injunctions). To fulfill the "irreparable
harm" requirement, the movant "must demonstrate
immediate threatened injury" and "do more than
merely allege imminent harm." Associated Gen.
Contractors of California, Inc. v. Coal, for Econ.
Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).
motion is deficient, because the conduct of which he
complains not clearly a part of the claim in his civil
action. Plaintiff cannot establish a likelihood of success on
the merits of a claim that has not been raised in a
complaint. Plaintiffs current complaint names only Janet
Rhoton, a supervisor at Pierce County Jail, as defendant, and
his motion for a TRO describes the conduct of unnamed guards
and a nurse. Plaintiff has moved for leave to amend his
complaint to include other defendants (Dkt. 21), but at this
point the connection is tenuous between plaintiffs complaint
and his current quality of medical treatment.
plaintiff has not attested, nor has the defense attested,
whether plaintiff is a pre-trial or post-conviction detainee,
which determines the rights that form the basis of plaintiff
s medical claim. If plaintiff is incarcerated after his
conviction at trial, then the Eighth Amendment prohibits
"deliberate indifference" to plaintiffs serious
medical needs, according to the subjective intent of
the defendant. Colwell v. Bannister, 763 F.3d 1060,
(9th Cir. 2014); see Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1242-43 (9th Cir. 2010). If
plaintiff has not yet stood trial, then the Due Process
Clause of the Fourteenth Amendment governs his rights and
prohibits objectively deliberate indifference to
plaintiffs medical needs: "something akin to reckless
disregard" of the risks to plaintiff. Gordon v. Cty.
of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). To
determine the applicable legal standard by which the Court
makes an assessment of whether mjunctive relief is warranted,
plaintiff and/or defendant must provide this elementary fact.
a party may obtain a TRO without notice to the adverse party,
but only after providing "specific facts in an affidavit
or a verified complaint clearly show[ing] that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition,"
and providing a certified explanation of why notice should
not be required. Fed.R.Civ.P. 65(b)(1). Plaintiffs motion is
unclear as to the specific relief sought from the Court and
does not provide specific facts to give the defense notice of
the basis upon which he seeks a temporary restraining order
or preliminary injunction.
is directed to submit an affidavit on or before Friday,
October 11, 2019, as to:
(1) whether plaintiff is a pretrial detainee or a post-trial
(2) how the motion for a temporary restraining order is
related to plaintiffs claim; and
(3) what specific actions or relief plaintiff wishes the
Court to order.
Clerk of Court is directed to re-note plaintiffs "Motion
for Order to Show Cause for Temporary Restraining Order and
Preliminary Injunction" (Dkt. 28) on the Court's
calendar for Friday, October 25, 2019.
shall file a response, including a response as to whether
plaintiff is a pre-trial detainee or post-conviction ...