1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ERNEST KELLY HOLESTINE, 11 Case No. 20-06677 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION FOR v. TEMPORARY RESTRAINING 13 ORDER M.B. ATCHLEY, et al., 14 Defendants. 15 (Docket No. 3)

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17 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42

against prison staff at Salinas Valley State Prison. Dkt. No. 1. Along with 19 the complaint, Plaintiff filed a motion for a preliminary injunction and temporary 20 restraining order against SVSP Defendants Warden M. B. Atchley and G. Padilla, the 21 Chief Executive Officer, to instruct, educate, supervise and monitor all SVSP staff 22 regarding the proper use of masks in relation to covid-19 disease transmission health and 23 safety prevention protocols. Dkt. No. 3; Dkt. No. 1 at 8. 24 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a 25 preliminary injunction or temporary restraining order (“TRO”). Prior to granting a 26 preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 27 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the 1 parties to the action are served. See Zepeda v. INS,

(9th Cir. 1983). A 2 TRO may be granted without written or oral notice to the adverse party or that party’s 3 attorney only if: (1) it clearly appears from specific facts shown by affidavit or by the 4 verified complaint that immediate and irreparable injury, loss or damage will result to the 5 applicant before the adverse party or the party's attorney can be heard in opposition, and 6 (2) the applicant’s attorney certifies in writing the efforts, if any, which have been made to 7 give notice and the reasons supporting the claim that notice should not be required. See 8 Fed. R. Civ. P. 65(b). 9 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 10 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 11 Lopez v. Brewer, et al.,

(9th Cir. 2012) (citation omitted) (emphasis 12 in original). The standard for issuing a TRO is similar to that required for a preliminary 13 injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court,

, 14 1008 (9th Cir. 1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary 15 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 16 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 17 favor, and that an injunction is in the public interest.” Winter v. Natural Resources 18 Defense Council, Inc.,

(2008). 19 Here, Plaintiff asserts that he satisfies the first requirement and concedes that he has 20 not satisfied the second requirement of notice. Dkt. No. 3 at 4. Notwithstanding the fact 21 that Defendants have not been served in this matter, the Court finds Plaintiff has failed to 22 satisfy all the requirements under Winter to justify a TRO at this time. With respect to the 23 first element, likelihood of success on the merits, Plaintiff has failed to show that he is 24 likely to succeed on his claim for injunctive relief against Defendants who are in a 25 supervisory manner over the SVSP staff who are allegedly not complying with safety 26 protocols related to covid-19. Plaintiff admits that on the same day that an inmate first 1 reassuring all inmates that they were “‘doing all we can to keep everybody safe’” and 2 would “continue to follow Centers for Disease Control and Prevention and California 3 Department of Public Health guidelines for responding to COVID-19.” Dkt. No. 1 at 5; 4 Dkt. No. 1-2 at 28. Plaintiff claims that despite this message, SVSP staff continue to wear 5 their masks improperly. Dkt. No. 1 at 5. It is unclear whether this was due to Defendants’ 6 failure to properly train or the SVSP staff’s individual negligence or intentional disregard 7 of the procedures in which they were already trained; if the latter, then Defendants cannot 8 be liable. Accordingly, Plaintiff has not established that he is likely to succeed on the 9 merits against Defendants. Where the court concludes the movant has failed to show a 10 likelihood of success on the merits, the court, in its discretion, need not consider whether 11 the movant would suffer irreparable injury. Guzman v. Shewry,

(9th 12 Cir. 2009). Accordingly, Plaintiff’s motion for a TRO is DENIED without prejudice at 13 this time. 14 This order terminates Docket No. 3. 15 IT IS SO ORDERED. 16 Dated: _September 29, 2020____ ________________________ BETH LABSON FREEMAN 17 United States District Judge 18

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25 Order Denying TRO PRO-SE\BLF\CR.20\06677Holestine_deny.tro 26