Thompson v. Kernan, et al.

Filing 105

FINDINGS And RECOMMENDATIONS Recommending Denying Plaintiff's Motion For A Preliminary Injunction (ECF Nos. 69 , 70 , 71 ), Objections Due Within Fifteen Days, signed by Magistrate Judge Barbara A. McAuliffe on 7/16/2012. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/2/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TRAVIS RAY THOMPSON,

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CASE NO. 1:07-cv-00572-AWI-BAM PC

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING PLAINTIFF’S
MOTION FOR A PRELIMINARY INJUNCTION

KERNAN, et al.,

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(ECF Nos. 69, 70, 71)
Defendants.

OBJECTIONS DUE WITHIN FIFTEEN DAYS
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Plaintiff Travis Ray Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 24, 2011, Plaintiff filed

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a motion for a preliminary injunction. (ECF No. 69.) Defendants filed an opposition on January 27,

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2011, and Plaintiff filed a reply on February 7, 2011. (ECF Nos. 70, 71.) This action was then

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dismissed for Plaintiff’s failure to exhaust administrative remedies on June 8, 2011. (ECF No. 85.)

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Plaintiff appealed the dismissal for failure to exhaust administrative remedies. (ECF No. 89.) On

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July 12, 2012, the Ninth Circuit Court of Appeals affirmed the dismissal for failure to exhaust

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administrative remedies, but remanded this action for the Court to consider Plaintiff’s claims which

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had been dismissed arising after Plaintiff filed his initial complaint. (ECF No. 101.) Concurrent

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with this findings and recommendation, Plaintiff’s third amended complaint is being dismissed, with

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leave to amend.

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

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Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff

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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips

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in his favor, and that an injunction is in the public interest.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) quoting Winter, 129 S. Ct. at 374. An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter,

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129 S. Ct. at 376 (citation omitted) (emphasis added).

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For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield

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v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This requires

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Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete and

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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be

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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial

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decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

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(2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).

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In addition, any award of equitable relief is governed by the Prison Litigation Reform Act,

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which provides in relevant part, “Prospective relief in any civil action with respect to prison

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conditions shall extend no further than necessary to correct the violation of the Federal right of a

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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless

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the court finds that such relief is narrowly drawn, extends no further than necessary to correct the

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violation of the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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At this stage in the action, the Court cannot make a finding that Plaintiff is likely to prevail

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on the merits in this action because he does not have a cognizable claim pending before the court.

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Even if Plaintiff is able to state a cognizable claim, the claims that have been revived by the Ninth

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Circuit Court of Appeals allege retaliation and a conspiracy to deny access to the court in violation

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of the First Amendment. (Motion for Preliminary Injunction 3-4, ECF No. 69.) Plaintiff’s claim in

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this action arises from a past incidents that occurred while Plaintiff was housed at the California

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Correctional Institution, Tehachapi. The pendency of this action does not confer on the Court

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jurisdiction to issue an order directing that Plaintiff be transferred to a federal institution, because

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such an order would not remedy the underlying legal claim, which involves the past conduct of
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prison officials’ at the California Correctional Institution, Tehachapi. 18 U.S.C. § 3626(a)(1)(A);

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Summers, 129 S.Ct. 1142 at 1149; Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118

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S.Ct. 1003 (1998); City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665 (1983);

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Mayfield, 599 F.3d at 969. Finally, the Court does not have jurisdiction to grant the relief requested.

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Plaintiff’s claims in this action arise out of his incarceration at California Correctional Institution,

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Tehachapi, and the Court does not have jurisdiction to order the California Department of

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Corrections and Rehabilitation to transfer Plaintiff or the federal prison system to house Plaintiff.

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Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a preliminary

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injunction be DENIED.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15)

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

July 16, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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