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D'Agirbaud v. Alanzo

United States District Court, D. Hawaii

July 16, 2019

QUINTIN-JOHN D'AGIRBAUD, III, #A0265488, Plaintiff,


          J. Michael Seabright, Chief United States District Judge.


         Before 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[1] (“Alonzo-Cabardo”) and Dovie Borges (“Borges”) (collectively, “Defendants”), USO gang members, closed custody[2] and/or violent inmates, and the State of Hawaii. For the following reasons, the Motion is DENIED.


         A. Background

         Plaintiff 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.

         Plaintiff 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, [3]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.

         Defendants 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.

         B. Legal Standard

         “The 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 order).

         A 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).

         However, 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[4] 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).

         C. Application of Legal Standard to Plaintiff's Motion

         Here, Plaintiff's Motion for injunctive relief fails because he has failed to establish ...

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