Hillman v. Padilla

Full title: BOBBY LEE HILLMAN, Plaintiff, v. STEVE PADILLA, et al., Defendants

Court: United States District Court, D. Oregon

Date published: Nov 10, 2004

CV. 04-624-KI (D. Or. Nov. 10, 2004)

Opinion

CV. 04-624-KI.

November 10, 2004

ORDER

GARR KING, District Judge

Plaintiff is a parolee assigned to the Special Supervision Team of the Multnomah County Department of Community Justice. Plaintiff's parole officer is defendant Steve Padilla. Currently before the court is plaintiff's motion for a preliminary injunction ordering defendants to transfer his parole supervision to an "uninvolved Parole Officer in another office."

STANDARDS

The standard for granting a preliminary injunction balances the plaintiff's likelihood of success against the relative hardship to the parties. Save Our Sonoran, Inc. v. Flowers, 381 F.3d 905, 912 (9th Cir. 2004). Under the "traditional" criteria, a plaintiff must show (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).Save Our Sonoran, Inc., 381 F.3d at 912; Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004).

A court may grant an injunction if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in his favor. Save Our Sonoran, Inc., 381 F.3d at 912; Rodde, 357 F.3d at 994. However, because plaintiff is seeking relief well beyond the status quo, this court must deny relief unless the facts and law clearly favor plaintiff. Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994).

DISCUSSION

In his complaint, plaintiff alleges three claims for relief: (1) "First Amendment right to redress grievance"; (2) "Eighth Amendment violation for malicious and sadistic use of force"; and (3) "Fourteenth Amendment Due Process of the Law".

I. Retaliation.

This court construes plaintiff's First Amendment claim as a claim for retaliation. See Austin v. Terhune, 367 F.3d 1167, 1171 (9^th Cir. 2004). Plaintiff alleges that in response to his filing a grievance alleging that Padilla uttered a racial slur, defendants (1) revoked his parole; (2) assaulted him during the course of his arrest; and (3) informed his landlords and neighbors that he was a sex offender and child molester.

In order to prevail on this claim, plaintiff must allege and prove that defendants retaliated against him for exercising a constitutional right, and that the retaliatory action did not advance legitimate penological goals or was not narrowly tailored to achieve such goals. Hines v. Gomez, 108 F.3d 265, 267 (9^th Cir. 1997), cert. denied, 524 U.S. 936 (198); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

The submissions of the parties reveal the following:

1. Plaintiff was arrested on February 11, 2004, for providing "false information about his living situation." Although plaintiff alleges that he informed defendants previously of where he was living, plaintiff offers no evidence that he challenged the legality of his arrest.

2. Padilla attests that the force used during the course of plaintiff's arrest was necessary because plaintiff resisted arrest and struck Padilla with his right elbow. Although plaintiff attests that he was "assaulted", plaintiff does not deny that he struck Padilla with his elbow.

3. Although not convicted of a sex crime, plaintiff's parole release prohibits him from contacting minors or frequenting places where minors are likely to congregate, and requires him to participate in sex offender treatment.

In the absence of additional evidence, I conclude that plaintiff has failed to demonstrate probable success on the merits, or that serious questions exist as to whether the revocation of his parole, the execution of his arrest, and defendants alleged contact with plaintiff's landlord and neighbors, advanced the legitimate penological goal of enforcing plaintiff's parole restrictions. Alternatively, plaintiff has failed to demonstrate that the facts and the law on this claim clearly favor him.

II. Eighth Amendment Violation.

Plaintiff's second claim for relief is captioned "Eighth Amendment violation for malicious and sadistic use of force" during the course of his arrest. Because plaintiff does not allege that he was incarcerated when the alleged conduct occurred, plaintiff's claim lies under the Fourth or Fourteenth Amendments rather than the Eighth. See Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9^th Cir. 2003) (Eighth Amendment claim limited to convicted persons).

In any event, in light of Padilla's affidavit that plaintiff was resisting arrest, and plaintiff's failure to offer evidence that he did not strike Padilla with his elbow, I conclude that injunctive relief is not warranted as to this claim. See Clement v. Gomez, 298 F.3d 898, 903 (9^th Cir. 2002) ("force does not amount to constitutional violation . . . if it is applied in a good faith effort to restore discipline and order").

III. Due Process.

Plaintiff's third claim for relief alleges a Due Process violation. Plaintiff alleges that defendants "tried to force plaintiff onto a sex offender action plan" and, when he refused, began notifying plaintiff's neighbors and landlord that he was a sex offender. Plaintiff further alleges that defendants harassed him for failing to keep a steady address, and threatened him with sanctions if he failed to complete a "sex offender action plan."

This court construes plaintiff's third claim as premised upon the substantive component of the Due Process Clause which bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Zinermon v. Burch, 494 U.S. 113, 125 (1990). In light of the fact that plaintiff's allegations all relate to general and special restrictions placed on his parole release, I conclude that plaintiff has failed to demonstrate probable success on the merits, or the existence of serious questions as to whether defendants acted arbitrarily. Alternatively, plaintiff has failed to demonstrate that the facts and the law on this claim clearly favor him.

In sum, in light of the evidence in the record, considered in conjunction with the relative hardships of the parties, and the public interest in continuity of parole supervision, I conclude that plaintiff has failed to demonstrate that mandatory injunctive relief is warranted.

CONCLUSION

Based on the foregoing, plaintiff's motion for preliminary injunction (#14) is DENIED.

IT IS SO ORDERED.