Hawthorne v. Mendoza-Power et al

Filing 102

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's Motions be Denied re 98 , 100 & 101 , signed by Magistrate Judge Dennis L. Beck on 2/13/2012, referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RALPH KELLY HAWTHORNE, JR.,

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CASE NO. 1:07-cv-01101-LJO-DLB PC

Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S MOTIONS
BE DENIED

v.
KATHY MENDOZA-POWER, et al.,

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(DOCS. 98, 100, 101)

Defendants.

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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
/

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Plaintiff Ralph Kelly Hawthorne, Jr. (“Plaintiff”) is a prisoner in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro

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se in this civil rights action pursuant to 42 U.S.C. § 1983. On January 5, 2012, January 11, 2012,

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and January 31, 2012, Plaintiff filed 1) a motion for writ of mandate, 2) motion for court order to

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Avenal State Prison warden, and 3) motion for Court to order the warden to replace case

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documents. Docs. 98, 100, 101. The motions are construed as motions for preliminary

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injunction.

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

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Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). The purpose

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of preliminary injunctive relief is to preserve the status quo or to prevent irreparable injury

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pending the resolution of the underlying claim. Sierra On-line, Inc. v. Phoenix Software, Inc.,

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739 F.2d 1415, 1422 (9th Cir. 1984).
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Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court

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must have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102

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(1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc.,

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454 U.S. 464, 471(1982). If the court does not have an actual case or controversy before it, it has

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no power to hear the matter in question. Lyons, 461 U.S. at 102. Thus, “[a] federal court may

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issue an injunction [only] if it has personal jurisdiction over the parties and subject matter

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jurisdiction over the claim; it may not attempt to determine the rights of persons not before the

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court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1983); see Fed.

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R. Civ. P. 65(d)(listing persons bound by injunction).

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I.

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January 5, 2012 Motion
Plaintiff moves for a “writ of mandate” to order the warden of Avenal State Prison to

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provide Plaintiff with access to the law library. Plaintiff concedes that Defendants Kathy

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Mendoza-Power and K. Henry are no longer employed at Avenal State Prison. Plaintiff requests

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that the current warden, facility captain, and various librarians provide Plaintiff with access to the

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law library.

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Plaintiff has not met the requirements for a preliminary injunction. Plaintiff has not

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demonstrated a likelihood of success on the merits of his action. Winter, 555 U.S. at 20.

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Plaintiff’s complaint was dismissed for failure to state a claim, and there is no operative pleading

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in this action at this time. Additionally, Plaintiff has not demonstrated irreparable harm by being

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denied access to the law library. Accordingly, Plaintiff’s motion, construed as a motion for

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preliminary injunction, should be denied.

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II.

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January 11, 2012 Motion
Plaintiff complains that the medical appeals coordinator at Avenal State Prison has

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denied Plaintiff’s rights to file his appeal. Again, Plaintiff has not demonstrated a likelihood of

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success on the merits of his action. Winter, 555 U.S. at 20. Plaintiff’s complaint was dismissed

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for failure to state a claim, and there is no operative pleading. Accordingly, Plaintiff’s motion,

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construed as a motion for preliminary injunction, should be denied.

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III.

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January 31, 2012 Motion
Plaintiff moves the Court to order the warden of Avenal State Prison to provide a copy of

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all of Plaintiff’s court documents from June 29, 2010 to January 27, 2012, filed in this action.

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Plaintiff has not demonstrated a likelihood of success on the merits of his action. Winter, 555

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U.S. at 20. Additionally, if Plaintiff is requesting a copy from the Court, Plaintiff will be

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provided copies at the cost of $0.50 per page, as stated in the Court’s First Informational Order.

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Doc. 2. Accordingly, Plaintiff’s motion, construed as a motion for preliminary injunction, should

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be denied.

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IV.

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Conclusion
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motions, filed

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January 5, 2012, January 11, 2012, and January 31, 2012, construed as motions for preliminary

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injunction, be denied.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” A party may respond to another party’s objections by

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filing a response within fourteen (14) days from the date of service of a party’s objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

February 13, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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