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Since plaintiff is a prisoner without counsel, he must comply with these rules by showing he mailed a copy of filings

to defendant’s counsel. See L.R. 5-135(f).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BRIAN LEE CHRISTMAN,

Plaintiff, No. CIV S-04-0884 FCD PAN P

vs.

CALIFORNIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner seeking relief pursuant to 42 U.S.C. § 1983. He claims

defendants Mike Knowles, Scott Kernan, Michael Micheletti, S. Milbeck and Captain Robinson

were deliberately indifferent to his safety by causing him to be housed with a prisoner they knew

to be violent and that plaintiff thereby suffered injury. On March 6, 2006, plaintiff filed a motion

for a preliminary injunction. It appears plaintiff seeks an order directing his transfer to a 1

different prison.

To prevail on an application for preliminary injunctive relief, the moving party

must show either a likelihood of success on the merits and the possibility of irreparable injury, or

that serious questions are raised and the balance of hardships tips sharply in the movant’s favor. 

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2

See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir. 1997); Oakland

Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The two

formulations represent two points on a sliding scale with the focal point being the degree of

irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under any formulation of the

test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.” Id. In

the absence of a significant showing of possible irreparable harm, the court need not reach the

issue of likelihood of success on the merits. Id.

Only parties or non-parties with notice who are shown to be in active concert or

participation with defendants may be enjoined under Federal Rule of Civil Procedure 65. Zenith

Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). 

In cases brought by prisoners involving conditions of confinement, any

preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

harm the court finds requires preliminary relief, and be the least intrusive means necessary to

correct the harm.” 18 U.S.C. § 3626(a)(2).

Plaintiff alleges that he has been assaulted three times since October 14, 2005, and

that during defendant Michelleti’s watch on February 8, 2006, he was harassed as evidenced by

his attachments. The attachments show that when officers not named in this action told plaintiff

he would be moved to a different cell to accommodate another prisoner’s need for a lower bunk,

plaintiff responded with profanity and refused to move. Plaintiff was placed in administrative

segregation for five days because he refused an order and was retained there for at least another

10 days because of a report he had an enemy. It is not clear whether he has been released to the

general population.

Plaintiff fails to demonstrate his placement in administrative segregation was

unjustified. He neither identifies the individuals who assaulted him nor alleges any facts that

would lead the court to conclude future attacks resulting from constitutional violations are

imminent. Regardless of whether plaintiff likely will prevail on the merits, he has not shown a

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possibility he will suffer irreparable injury. 

Plaintiff is not entitled to a preliminary injunction. 

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s March 6, 2006,

motion for a preliminary injunction be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days

after being served with these findings and recommendations, plaintiff may file written objections. 

The document should be captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” Plaintiff is advised that failure to file objections within the specified time

may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: March 21, 2006.

\004\chri0884.dny pi

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