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ORDER that the reference to the Magistrate is withdrawn as to Plaintiff's Motion for a Preliminary Injunction 20 and the Motion is denied.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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1 2 SVK WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hearman Lee Newton, 10 No. CV 13-1874-PHX-DGC (MEA) Plaintiff, 11 v. 12 City of Phoenix, et al., 13 ORDER Defendants. 14 15 Plaintiff Hearman Lee Newton filed this pro se civil rights action claiming 16 excessive force in the course of his arrest. (Doc. 1.) On May 13, 2014, Plaintiff filed a 17 Motion for a Preliminary Injunction that seeks no specific relief. (Doc. 20.) On the same 18 day, he filed a Motion for Reconsideration of the Magistrate’s Judge’s Order denying 19 appointment of counsel. (Doc. 21.) Plaintiff also filed Objections to the Magistrate 20 Judge’s Report and Recommendation now pending before this Court. (Doc. 22; ref. Doc. 21 18.) Defendant opposes the Motion for a Preliminary injunction. (Doc. 23.) The Court 22 will deny the Motion for a Preliminary injunction. 23 A preliminary injunction is an extraordinary and drastic remedy and “one that 24 should not be granted unless the movant, by a clear showing, carries the burden of 25 persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A 26 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 27 (2d ed. 1995)). An injunction may be granted only where the movant shows that “he is 28 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 1 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 2 in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); 3 Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 4 The movant has the burden of proof on each element of the test. Environmental Council 5 of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). 6 Plaintiff claims that he is going to serve prison time at the Arizona Department of 7 Corrections (ADC) and that there are no law libraries at ADC where he can research 8 issues and litigate his case. (Doc. 20 at 2.) As Defendant observes, it is unclear what 9 Plaintiff is seeking. If he is seeking a stay of his transfer, Defendant notes that neither the 10 Maricopa County Sheriff’s Office nor ADC are parties here and cannot be enjoined in 11 this lawsuit. (Doc. 23 at 2, citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 12 U.S. 100, 110 (1969) (“one is not bound by a judgment in personam resulting from 13 litigation in which he is not designated as a party or to which he has not been made a 14 party by service of process”).) Defendant Officer Myers does not have custody of 15 Plaintiff and has no control over the Fourth Avenue Jail or ADC. (Id.) 16 To the extent that the Court can interpret Plaintiff’s Motion for a Preliminary 17 Injunction as one related to the Motion for Reconsideration and denial of counsel, it will 18 be denied. Plaintiff is speculating that ADC law libraries are inadequate for the purposes 19 of his litigation. 20 sufficient to warrant granting a preliminary injunction.” Caribbean Marine Services Co., 21 Inc. v. Baldrige, 844 F. 2d 668, 674-675 (9th Cir. 1988) (emphasis added). To meet the 22 “irreparable harm” requirement, a plaintiff must do more than merely allege imminent 23 harm; he must demonstrate it. Id. at 674. Plaintiff fails to establish that he will be 24 irreparably harmed by failure to immediately appoint counsel. The Court notes that the 25 Motion to Dismiss is fully briefed and that Plaintiff has already filed his objections to the 26 pending Report and Recommendation. 27 Reconsideration will be ruled on in due course. Mere “[s]peculative injury does not constitute irreparable harm (Docs. 8, 11, 15, 22.) 28 -2- The Motion for 1 2 3 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. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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