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United States District Court

Eastern District of California

Brady Armstrong,

Plaintiff, No. Civ. S 04-2136 GEB PAN P

vs. Findings and Recommendations

D. L. Runnels, et al.,

Defendants.

-o0oIn this action, plaintiff seeks damages and injunctive

relief on the ground defendants were deliberately indifferent to

his serious medical needs and used excessive force against him. 

Plaintiff alleges defendants Chandler, Young, Turner, Rumble and

Phinney “dumped” him from his wheelchair; defendants Gomez and

Runnels knew these defendants were likely to harm plaintiff but

failed to take reasonable measures to protect plaintiff;

defendant Gellette denied plaintiff’s request for medical 

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treatment when plaintiff suffered “painful, stroke-like symptoms”

and could not use the left side of his body for three days;

defendant Callison confiscated plaintiff’s blood pressure and

diabetes medication; defendants Rumble and Phinney prevented

plaintiff from going to an outside hospital for an MRI; defendant

Chandler gave plaintiff contaminated food and was violent to

plaintiff when plaintiff asked for different food; defendant

Mangis confiscated plaintiff’s wheelchair without medical cause;

defendants Fernandez and Doe denied plaintiff medication during a

transfer when plaintiff began to suffer pain and swelling of his

toes, feet, fingers and hands, a headache and difficulty

breathing; and defendant Turner spit on plaintiff.

Plaintiff alleges he is mobility impaired and diabetic and

he suffers severe pain on a daily basis.

Plaintiff moves for a preliminary injunction enjoining

retaliation, directing his transfer to a different prison and

directing his medication be tested for contaminants.

A preliminary injunction will not issue unless necessary

because threatened injury would impair the court’s ability to

grant effective relief in a pending action. Sierra On-Line, Inc.

v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984);

Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A

preliminary injunction represents the exercise of a very far

reaching power never to be indulged except in a case clearly

warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 

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143 (9th Cir. 1964). 

To prevail upon an application for a prohibitory preliminary

injunction, plaintiff must demonstrate either probable success on

the merits and the possibility of irreparable injury, or serious

questions regarding the merits of his claims and a balance of

hardships tipping sharply in his favor. Miss Universe, Inc. v.

Flesher, 605 F.2d 1130, 1134 (9th Cir. 1979). If the balance of

harm tips decidedly toward the plaintiff, then the plaintiff need

not show as robust a likelihood of success on the merits as when

the balance tips less decidedly. Benda v. Grand Lodge of the

International Association of Machinists, 584 F.2d 308, 315 (9th

Cir. 1978). The threatened injury must be immediate. Los

Angeles Memorial Coliseum Comm'n v. National Football League, 634

F.2d 1197, 1201 (9th Cir. 1980). And since the remedy is

equitable in nature, there must be no adequate remedy at law. 

Stanley v. University of S. Cal., 13 F.3d 1313, 1320 (9th Cir.

1994). If the relief sought is mandatory rather than

prohibitory, the balance must more clearly favor the applicant. 

Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993).

To prevail, plaintiff must show the relief sought is

necessary to preserve the status quo and that the alleged threat

is immediate and irreparable at law. Because the relief

plaintiff seeks would require prison officials affirmatively to

transfer him to a different facility and to examine his

medication, plaintiff’s burden is exceptionally rigorous. 

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The relief plaintiff seeks cannot be said to be necessary to

provision of effective relief upon plaintiff’s pending claims.

While plaintiff has a right to be free from retaliation for

exercising his right of access to the courts, he has alleged a

single specific retaliatory act, viz., spitting, by prison staff. 

Plaintiff has made no demonstration his medicine has been

contaminated intentionally or that transfer to another prison is

necessary to remedy his complaints.

 For all of the foregoing reasons, plaintiff’s February 7,

2005, request for a preliminary injunction should be denied.

Pursuant to 28 U.S.C. § 636(b)(l) these findings and

recommendations are submitted to the district judge assigned to

this case. 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.” The district judge may accept,

reject, or modify these findings and recommendations in whole or

in part.

Dated: August 17, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

/arms2136.f&r dny pi.wpd

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