Newton v. Phoenix, City of et al

Filing 26

ORDER that the reference to the Magistrate is withdrawn as to Plaintiff's Motion for a Preliminary Injunction 20 and the Motion is denied. Signed by Judge David G Campbell on 6/10/2014.(ALS)

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SVK

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hearman Lee Newton,

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No. CV 13-1874-PHX-DGC (MEA)

Plaintiff,

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v.

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City of Phoenix, et al.,

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ORDER

Defendants.

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Plaintiff Hearman Lee Newton filed this pro se civil rights action claiming

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excessive force in the course of his arrest. (Doc. 1.) On May 13, 2014, Plaintiff filed a

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Motion for a Preliminary Injunction that seeks no specific relief. (Doc. 20.) On the same

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day, he filed a Motion for Reconsideration of the Magistrate’s Judge’s Order denying

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appointment of counsel. (Doc. 21.) Plaintiff also filed Objections to the Magistrate

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Judge’s Report and Recommendation now pending before this Court. (Doc. 22; ref. Doc.

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18.) Defendant opposes the Motion for a Preliminary injunction. (Doc. 23.) The Court

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will deny the Motion for a Preliminary injunction.

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A preliminary injunction is an extraordinary and drastic remedy and “one that

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should not be granted unless the movant, by a clear showing, carries the burden of

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persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A

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C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130

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(2d ed. 1995)). An injunction may be granted only where the movant shows that “he is

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likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

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in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

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Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

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The movant has the burden of proof on each element of the test. Environmental Council

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of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

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Plaintiff claims that he is going to serve prison time at the Arizona Department of

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Corrections (ADC) and that there are no law libraries at ADC where he can research

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issues and litigate his case. (Doc. 20 at 2.) As Defendant observes, it is unclear what

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Plaintiff is seeking. If he is seeking a stay of his transfer, Defendant notes that neither the

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Maricopa County Sheriff’s Office nor ADC are parties here and cannot be enjoined in

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this lawsuit. (Doc. 23 at 2, citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100, 110 (1969) (“one is not bound by a judgment in personam resulting from

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litigation in which he is not designated as a party or to which he has not been made a

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party by service of process”).) Defendant Officer Myers does not have custody of

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Plaintiff and has no control over the Fourth Avenue Jail or ADC. (Id.)

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To the extent that the Court can interpret Plaintiff’s Motion for a Preliminary

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Injunction as one related to the Motion for Reconsideration and denial of counsel, it will

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be denied. Plaintiff is speculating that ADC law libraries are inadequate for the purposes

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of his litigation.

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sufficient to warrant granting a preliminary injunction.” Caribbean Marine Services Co.,

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Inc. v. Baldrige, 844 F. 2d 668, 674-675 (9th Cir. 1988) (emphasis added). To meet the

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“irreparable harm” requirement, a plaintiff must do more than merely allege imminent

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harm; he must demonstrate it. Id. at 674. Plaintiff fails to establish that he will be

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irreparably harmed by failure to immediately appoint counsel. The Court notes that the

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Motion to Dismiss is fully briefed and that Plaintiff has already filed his objections to the

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pending Report and Recommendation.

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Reconsideration will be ruled on in due course.

Mere “[s]peculative injury does not constitute irreparable harm

(Docs. 8, 11, 15, 22.)

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The Motion for

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IT IS ORDERED that the reference to the Magistrate is withdrawn as to
Plaintiff’s Motion for a Preliminary Injunction (Doc. 20) and the Motion is denied.
Dated this 10th day of June, 2014.

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