P. v. Riles

• Decision Date: 16 August 1974
• Docket Number: No. 72-2509,72-2509
• Citation: 502 F.2d 963
• Parties: Larry P. et al., Plaintiffs-Appellees, v. Wilson RILES et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 963

502 F.2d 963

Larry P. et al., Plaintiffs-Appellees, v. Wilson RILES et al., Defendants-Appellants.

No. 72-2509.

United States Court of Appeals, Ninth Circuit.

Aug. 16, 1974.

Daniel E. Collins, III (argued), Deputy City Atty., San Francisco, Cal., for defendants-appellants.

Michael S. Sorgen (argued), of San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., for plaintiffs-appellees.

Before KOELSCH and DUNIWAY, Circuit Judges, and ANDERSON, ¹ district judge.

OPINION

PER CURIAM:

This is an appeal from an order granting, in part, a motion for a preliminary injunction. 28 U.S.C. 1292(a)(1) gives us jurisdiction. The district judge's Order and Memorandum, which embodies his findings of fact and conclusions of law, are reported in P. v. Riles, N.D.Cal., 1972, 343 F.Supp. 1306. We affirm.

As will be seen from that report, the district judge granted only a part of the requested relief, and narrowly limited what he granted. 343 F.Supp. at 1314-1315.

'It is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court; and that, upon appeal, an order granting such an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141 (40 S.Ct. 463, 64 L.Ed. 822); Love v. Atchison Railway, supra (8 Cir., 185 F. 331) p. 331; and cases there cited. Especially will the granting of the temporary writ be upheld, when the balance of injury as between the parties favors its issue. Amarillo v. Southwestern Telephone Co. (C.C.A.), 253 F. 638, 640.'

Prendergast v. N.Y. Tel. Co., 1923, 262 U.S. 43, 50-51, 43 S.Ct. 466, 469, 67 L.Ed. 853. Accord: Deckert v. Independence Shares Corp., 1970, 311 U.S. 282, 290, 61 S.Ct. 229, 85 L.Ed. 189. In Washington Capitols Basketball Club, Inc. v. Barry, 9 Cir., 1969, 419 F.2d 472, 475-476, we said: 'On an appeal from such an order (granting a preliminary injunction) it is the responsibility of this court to decide only the question as to whether or not the granting of the order was an abuse of discretion. An abuse of discretion has been defined as a 'plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as they are found.' Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946).' Id. at 476.

In reviewing the district court's order, we also apply the principles stated by us in Sierra Club v. Hickel, 9 Cir., 1970, 433 F.2d 24, 33, aff'd, 1972, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636: 'In order to obtain such relief (viz. a preliminary injunction), . . . the plaintiff must establish a strong likelihood or 'reasonable certainty' that he will prevail on the merits at a final hearing . . ..

In addition, before such a writ should issue, the applicant must show that it will suffer irreparable injury. The court must balance the damage to both parties.' See also Allison v. Froehlke, 5 Cir., 1972, 470 F.2d 1123, 1126. We also have in mind that, as we said in Tanner Motor Livery, Ltd. v. Avis, Inc., 9 Cir. 1963, 316 F.2d 804 at 808, 809.

'It is so well settled as not to require citation of authority that the usual function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits. The hearing is not to be transformed into a trial of the merits of the action upon affidavits, and it is not usually proper to grant the moving party the full relief to which he might be entitled if...