Jones v. Wood

          ORDER

          MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE

         Plaintiff Edward Lee Jones, Sr., who is currently confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Before the Court is a Motion entitled “Plaintiff's Emergency Motions for Injunction against the Arizona Department of Corrections officials/staff at SMU-1” (Doc. 58), which Plaintiff filed in four pending cases.^[1]

         The Court will deny the Motion filed in this action.

         I. Background

         On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated First Amendment retaliation claims in Count One against Defendant Wood, in Count Two against Defendant Loreto, and in Count Four against Defendant Garcia, and a Fourteenth Amendment due process claim against Defendants Garcia and Rothlisberger in Counts Four and Five. (Doc. 32.) The Court dismissed the remaining claims and Defendants. (Id.)

         II. Motion for Injunctive Relief

         In his “Emergency Motions for Injunction, ” Plaintiff requests an order from the Court ordering Sergeant Harris to “provide all of Plaintiff's legal boxes/legal books, for ADC to be directed not to take Plaintiff's legal boxes/legal books, . . . [and] for SMU1 officials to provide Plaintiff with indigent hygiene and access to proper forms to exhaust the grievance process.” (Doc. 58 at 1.)

         Plaintiff complains that between July 23, 2019 and November 7, 2019, “staff” at Rynning unit provided him “indigent” supplies only four times. (Id. at 2.) Plaintiff asserts that “in the last 12 months, ” Sergeant Harris and his subordinates have lost or wrongfully destroyed Plaintiff's property. (Id. at 2-3.) Plaintiff asserts that despite multiple requests, staff will not return his legal property and as a result he has been unable to respond to motions filed in this case and in CV 18-1972. (Id. at 4.) Plaintiff also states that “[p]risoners are being hindered from the grievance process.” (Id. at 5.)

         Defendants respond that Plaintiff arrived at ASPC-Eyman-SMU-1 on November 7, 2019 and received his property by no later than December 4, 2019. (Doc. 61 at 2.) Plaintiff had 6 legal boxes in his property, but prisoners are only allowed 3 boxes in their living area at any one time, and the excess boxes were placed in storage. (Id.) Plaintiff may request to exchange boxes from his housing area to receive boxes from storage, but Sergeant Harris has not received any written requests from Plaintiff for a legal box exchange. (Id.) Plaintiff did not file a reply or respond to Defendants' assertion that he had not submitted a written request to exchange his legal boxes.

         A. Legal Standard

         “A preliminary injunction 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 v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072.

         Regardless of which standard applies, the movant “has the burden of proof on each element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted “unless the facts and law clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

         The Prison Litigation Reform Act imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials and requires that any injunctive relief be narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal, 220 F.3d 987, 999 (9th Cir. 2000).

         A court may issue an injunction against a non-party only where the non-party acts in active concert or participation with an enjoined party. Fed.R.Civ.P. 65(d)(2) (a preliminary injunction only binds those who receive actual notice of it by personal service or are parties, their officers, agents, servants, employees, and attorneys, and persons in active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1984) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not ...