United States District Court, D. Hawaii
ORDER DENYING MOTION FOR PRELIMINARY
Michael Seabright Judge
February 7, 2018, Plaintiff Joseph Pitts filed one Motion for
Preliminary Injunction in two separate cases - Pitts v.
Espinda, et al., Civ. No. 15-00483 JMS-KJM and Pitts
v. Tuitama, et al., Civ. No. 17-00137 JMS-KJM. ECF No.
On February 22, 2018, some Defendants in Civ. No. 15-00483
JMS-KJM filed responses. ECF Nos. 173, 174. On February 26,
2018, Plaintiff filed a Declaration in Response (“Pitts
Decl.”), and on March 8, 2018, Plaintiff filed a
“Response to Defendants' Memorandum in
Opposition” (“Reply”). ECF Nos. 175, 176.
No Defendant in Tuitama, Civ. No. 17-00137 JMS-KJM,
filed a response. On February 7, 2018, Walter Schoettle filed
a Disclaimer clarifying that he is Plaintiff's counsel in
a state-court criminal appeal only and not in these civil
cases. ECF No. 167. Schoettle filed declarations regarding
Plaintiff's Motion on March 9 and 12, 2018. ECF Nos. 178,
to Local Rule 7.2(d), the court finds this matter suitable
for disposition without a hearing. For the reasons discussed
below, the Motion for Preliminary Injunction is DENIED.
underlying cases arise from an alleged physical assault by
correctional officers at Halawa Correctional Facility
(“HCF”) on July 9, 2014, Espinda, Civ.
No. 15-00483 JMS-KJM, and alleged violations of his
constitutional rights (1) with respect to prison mail
policies and practices, and (2) in retaliation for filing
lawsuits and grievances, Tuitama, Civ. No. 17-00137
JMS-KJM. In both cases, Plaintiff seeks transfer to another
facility in Hawaii, as well as damages and other injunctive
relief. See First Am. Compl. at 22, ECF No. 82;
see also Tuitama, Civ. No. 17-00137 JMS-KJM, Sec.
Am. Compl. at 22, ECF No. 30.
now seeks a preliminary injunction ordering his transfer from
HCF to another facility located in Hawaii. Plaintiff does not
seek transfer to a particular correctional facility, but he
identifies as possible sites the Federal Detention Center,
Honolulu (“FDC”) and State of Hawaii correctional
facilities at Kulani or Waiawa. Mot. at PageID #997, ECF No.
165-3; Pitts Decl. at 1, 3, ECF No. 175; Reply at 5 (seeking
transfer to “FDC or another facility on the island of
bases this request on allegations that (1) because he is
housed in the same facility as Defendants, he “could be
attacked, assaulted, falsely written up, killed, starved and
denied all constitutional rights, ” Mot. at PageID
#979; (2) Defendants are denying him access to his counsel
for an appeal of his state criminal conviction, Mot. at
PageID #983-84; Schoettle Decl. at 1-4, ECF No. 178; (3)
Defendants' are denying him access to the law library,
Mot. at PageID #986, 993, 996; and (4) Defendants are
interfering with and/or mishandling his legal and personal
mail, id. at PageID #980-92, 998.
specifically, Plaintiff alleges that since the July 2014
assault, while at HCF (1) he sees “several of the
defendants who gang assaulted [him] everyday, ”
id. at PageID #984; (2) he has been strip-searched
multiple times, removed from his job, and denied food,
id. at PageID # 986; (3) he is not scheduled for law
library despite submitting timely requests, id. at
PageID # 993; and (4) Defendants refuse to mail more than one
letter per week, regardless of whether it is personal or
legal, and despite assurances to the court that legal mail
would be sent, id. at PageID #981.
preliminary injunction is an extraordinary and drastic remedy
[that] is never awarded as of right.” Munaf v.
Geren, 553 U.S. 674, 689-90 (2008) (citation and
quotation signals omitted). To obtain a preliminary
injunction, a plaintiff “must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Generally, as long as the other two parts of the
Winter test are met, a preliminary injunction may
issue where the plaintiff demonstrates the existence of
“serious questions going to the merits . . . and the
balance of hardships tips sharply in the plaintiff's
favor.” All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1135 (9th Cir. 2011) (citation and quotation
where a plaintiff seeks an injunction requiring the defendant
to take affirmative action - such as ordering Plaintiff
transferred to another facility - it is considered a
mandatory injunction and is “particularly
disfavored.” Marlyn Nutraceuticals, Inc. v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)
(citations omitted). A mandatory injunction is “not
granted unless extreme or very serious damage will result and
[is] not issued in doubtful cases or where the injury
complained of is capable of compensation in damages.”
Id. (quoting Anderson v. United States, 612
F.2d 1112, 1115 (9th Cir. 1980); Park Vill. Apartment
Tenants Ass'n v. Mortimer Howard Tr., 636 F.3d 1150,
1160 (9th Cir. 2011)). That is, the court “should deny
such relief ‘unless the facts and law clearly
favor the moving party.'” Garcia v.
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (quoting
Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th
Cir. 1994)) (emphasis added).
a preliminary injunction may not be issued absent a
“relationship between the injury claimed in the motion
for injunctive relief and the conduct asserted in the
underlying complaint.” Pac. Radiation Oncolgy, LLC
v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir.
2015). Such a relationship is “sufficiently strong
where the preliminary injunction would grant ‘relief of
the same character as that which may be granted
finally.'” Id. (quoting De Beers
Consol. Mines v. United States, 325 ...