1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OLWAYNE DUNKLEY, Case No.: 3:19-cv-02498-AJB-NLS Petitioner, 12 ORDER DENYING WITHOUT v. PREJUDICE PETITIONER’S 13 MOTION FOR TEMPORARY WARDEN, STEWART DETENTION 14 RESTRAINING ORDER, (Doc. No. 9.) CENTER, ET AL., 15 Respondents. 16 17 Currently pending before the Court is Petitioner Olwayne Dunkley’s (“Petitioner”) 18 motion for a temporary restraining order (“TRO”). (Doc. No. 9.) For the reasons set forth 19 below, the Court DENIES WITHOUT PREJUDICE Petitioner’s motion for a TRO. 20 I. BACKGROUND 21 On December 30, 2019, Petitioner filed a petition for writ of habeas corpus under 28

. According to the petition, Petitioner is a lawful permanent resident who is 23 currently in the custody of ICE and detained in the Stewart Detention Center in Lumpkin, 24 Georgia. (Doc. No. 1 at 4.) Petitioner was charged with removability pursuant to INA 25 § 237(a)(2)(A)(ii) as an individual who has been convicted of two or more crimes involving 26 moral turpitude. (Id. at 7.) Petitioner challenges his removability because he contends 27 annoying or molesting a child under 18 years of age, and indecent exposure are not crimes 28 involving moral turpitude under Ninth Circuit authority. (Id. at 6–7.) 1 On January 2, 2020, the Court granted Petitioner in forma pauperis status, (Doc. No. 2 3), and on January 8, 2020, Petitioner filed a motion for a TRO. (Doc. No. 9.) 3 II. DISCUSSION 4 In his motion for a TRO, Petitioner alleges Respondents intend to transfer Petitioner 5 to different detention facilities throughout the United States in retaliation for filing his 6 habeas petition. (Doc. No. 9 at 2.) Petitioner states that such transfers would result in the 7 loss or destruction of his legal mail and documents, and would prevent Petitioner from 8 accessing the law library. (Id.) 9 A TRO may be granted without written or oral notice to the adverse party or that 10 party’s attorney if: (1) it clearly appears from specific facts shown by affidavit or by the 11 verified complaint that immediate and irreparable injury, loss or damage will result to the 12 applicant before the adverse party or the party’s attorney can be heard in opposition, and 13 (2) the applicant’s attorney (plaintiff himself in this case, as he proceeds pro se) certifies 14 in writing the efforts, if any, which have been made to give notice and the reasons 15 supporting the claim that notice should not be required. Fed. R. Civ. P. 65(b). 16 Here, Petitioner has not satisfied either procedural requirement. The motion for a 17 TRO does not address the standard for issuance of a TRO, and the relevant factors appear 18 to be incompletely addressed. See Alliance for Wild Rockies v. Pena,

, 1217 19 (9th Cir. 2017) (citing Winter v. Natural Res. Def. Council, Inc.,

(2008)) 20 (discussing standards for preliminary injunctive relief). Under either of the two tests used 21 by the Ninth Circuit, merits are a key factor, and neither the petition nor the TRO motion 22 adequately address them. Funes Suazo v. McAleenan, No. 19CV1882-LAB (MSB), 2019

, at *1 (S.D. Cal. Oct. 1, 2019). 24 In particular, Petitioner has not demonstrated immediate and irreparable injury. The 25 motion only says Petitioner believes he will be transferred, but Petitioner does not provide 26 any details as to when or how imminent that may be. In any event, it is well-established 27 that prisoners have no constitutional right to incarceration in a particular prison. See Olim 28 v. Wakinekona,

, 244–48,

,

(1983). 1 Furthermore, Respondents apparently have no notice of the TRO motion, and the 2 ||motion does not explain why a TRO should be granted before they can respond. For this 3 reason alone, the motion is subject to denial. See Fed. R. Civ. P. 65(b)(1). Only in a narrow 4 ||range of cases may a court issue a TRO before the opposing party has an opportunity to be 5 ||heard. Granny Goose Foods, Inc. v. Brotherhood of Teamsters,

, 438-39 6 ||(1974). This is not such a case. 7 CONCLUSION 8 For the reasons stated herein, Petitioner’s motion for a TRO is DENIED 9 || WITHOUT PREJUDICE. 10 11 |} IT IS SO ORDERED. 12 Dated: January 10, 2020 © 13 Hon, Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28