United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY
INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDERS, ECF NO.
Michael Seabright, Chief United States District Judge.
the court is pro se Plaintiff Quintin-John D'Agirbaud,
III's (“Plaintiff”) “Motion for
Temporary Injunctive Relief and Temporary Restraining
Orders.” ECF No. 65. Plaintiff seeks unspecified
injunctive relief against Defendants Sarah
Alanzo (“Alonzo-Cabardo”) and Dovie
Borges (“Borges”) (collectively,
“Defendants”), USO gang members, closed
custody and/or violent inmates, and the State of
Hawaii. For the following reasons, the Motion is DENIED.
filed the instant Motion on July 5, 2019, and Defendants
filed an Opposition on July 10, 2019. ECF Nos. 65, 68.
Pursuant to Local Rule 7.2(d), the court finds this matter
suitable for disposition without a hearing.
alleges that: (1) despite submitting numerous requests to
Program Control Administrator (“PCA”) Gary Kaplan
(“Kaplan”) to be moved from Halawa Correctional
Facility (“HCF”) Module 1B to another module,
Kaplan has neither answered those requests
nor moved Plaintiff; (2) another inmate told Plaintiff that
Alonzo-Cabardo is going through Plaintiff's mail and
housing requests; (3) Alonzo-Cabardo is harassing Plaintiff
by assigning him violent, closed custody cellmates, and
telling other inmates that Plaintiff is “ratting”
on inmates; (4) on June 1, 2019, Plaintiff was threatened by
his cellmate, who was then removed and replaced with another
closed custody cellmate; (5) a USO gang leader told Plaintiff
to stop ratting or “he and his ‘boys' were
going to ‘light . . . up' Plaintiff”; (6) on
July 1, 2019, a prison librarian told Plaintiff that Kaplan
told the librarian to “write Plaintiff up” for
typing another housing request; and (7) Defendants will try
to relocate Plaintiff to an Arizona prison “in the
guise of ‘overcrowding' to further delay
Plaintiff's progress in this current civil suit.”
ECF No. 65 at PageID #392-96. Plaintiff argues that he has
“multiple separatees” against USO gang members,
and therefore “should not be housed with or around such
inmates.” Id. at PageID #395. Plaintiff
further argues that he “does not need to be placed in
segregation . . . .” Id. at PageID #396.
explain that when an inmate's separatee request against
another inmate is granted, “the two inmates must be
housed in separate modules.” ECF No. 68 at PageID #407.
Defendants further explain that because Plaintiff has
“tak[en] out separatee requests against many other
inmates, ” he has “limited his available housing
assignments.” Id.; see also
Declaration of Gary B. Kaplan ¶ 4, ECF No. 68-3
(“Plaintiff has several separatee orders against other
inmates which greatly restrict available housing assignments
for Plainitff.”). Kaplan also states that in accordance
with DPS “procedures and protocols, gang members and
closed custody inmates who qualify for medium custody general
population are disbursed throughout the general population.
Experience has taught us that so disbursing these inmates is
far safer and causes fewer problems than concentrating them
together with like kind.” Kaplan Decl. ¶ 6, ECF
No. 68-3. According to Defendants, an inmate's initial
housing placement is done by Kaplan; cell assignments are
then made by the Sergeant on duty, the Unit Team Manager
(Janice Lepule), or other supervisory staff authorized to
make changes; and that neither Alonzo-Cabardo nor Borges make
housing assignments. See ECF No. 68 at PageID #407;
Declaration of Sarah Alonzo-Cabardo ¶ 4, ECF No. 68-1;
Declaration of Janice Lepule ¶¶ 3-4, ECF No. 68-2.
standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary
injunction.” Brown Jordan Int'l, Inc. v.
Mind's Eye Interiors, Inc., 236 F.Supp.2d 1152, 1154
(D. Haw. 2002) (citation omitted); cf. Stuhlbarg
Int'l Sales Co. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a
preliminary injunction is “substantially
identical” to an analysis of a temporary restraining
preliminary injunction is an “extraordinary and drastic
remedy” never awarded as of right. Munaf v.
Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).
“To warrant a preliminary injunction, [Plaintiff] must
demonstrate that [he] meets all four of the elements of the
preliminary injunction test established in [Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7
(2008)].” DISH Network Corp. v.
F.C.C., 653 F.3d 771, 776 (9th Cir. 2011). To meet the
Winter elements, “a plaintiff must establish
(1) that he is likely to succeed on the merits, (2) that he
is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in
his favor, and (4) that an injunction is in the public
interest.” BOKF, NA v. Estes, 923 F.3d 558,
561-62 (9th Cir. 2019) (citation and quotation marks
omitted). “[I]f 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 All. for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1135 (9th Cir. 2011)). Preliminary injunctive
relief should always be denied, however, if the probability
of success on the merits is low. See Johnson v. Cal.
State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.
1995) (stating that “even if the balance of hardships
tips decidedly in favor of the moving party, it must be shown
as an irreducible minimum that there is a fair chance of
success on the merits”) (citation omitted).
where a plaintiff seeks an injunction requiring the defendant
to take affirmative action-such as ordering Plaintiff
transferred to another module-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).
Application of Legal Standard to Plaintiff's
Plaintiff's Motion for injunctive relief fails because he
has failed to establish ...