Pollard v. Harrington
Filing
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FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for an Order to Show Cause for a Preliminary Injunction 34 be DENIED; referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 10/25/2011. Objections to F&R due by 11/28/2011 (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JERRY EMANUEL POLLARD,
CASE NO.
1:09-cv-1232-LJO-MJS (PC)
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Plaintiff,
FINDINGS AND RECOMMENDATION FOR
DENIAL OF PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION
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v.
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K. HARRINGTON, et al.,
(ECF No. 34)
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Defendants.
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/
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Plaintiff Jerry Emanuel Pollard (“Plaintiff”) is a state prisoner proceeding pro se and
in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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Before the Court is Plaintiff’s Motion entitled “Order to Show Cause for a Preliminary
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Injunction.” (ECF No. 34.) Plaintiff asks the Court to enjoin Defendants from depriving him
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of his legal materials, personal property, and independent living status under the
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Americans with Disabilities Act. (Mot. at 2.) Plaintiff also asks that Defendants and “their
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members” at Salinas Valley State Prison, where Plaintiff is currently incarcerated, be
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restrained from transferring him. (Mot. at 3.)
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Plaintiff currently is incarcerated at Salinas Valley State Prison. (ECF No. 25.) He
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is proceeding here on a First Amended Complaint which seeks to remedy alleged
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constitutional violations that occurred from 2007 through early 2009 at Kern Valley State
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Prison. (ECF No. 28; ECF No. 29.) The Court has yet to screen Plaintiff’s First Amended
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Complaint.
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The instant Motion alleges that Plaintiff’s personal property was seized on or about
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June 5, 2010, well after the events complained of in his First Amended Complaint. (Mot.
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at 2.) Plaintiff also alleges that unnamed Defendants are depriving him of his personal
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property and right to “single cell” status. (Mot. at 1-2.)
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Plaintiff’s Motion seeking relief for events at Salinas Valley State Prison does not
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involve or relate to acts by the Defendants who are named in his First Amended Complaint.
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Similarly, it is unlikely that the Defendants (at Kern Valley State Prison) named in Plaintiff’s
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First Amended Complaint play any role in transferring Plaintiff from Salinas Valley State
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Prison. Plaintiff does not allege they do. (Mot. at 3.)
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A plaintiff seeking injunctive relief is required to “show that he is under threat of
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suffering an ‘injury in fact’ that is concrete and particularized; the threat must be actual and
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imminent, not conjectural or hypothetical; it must be fairly traceable to challenged conduct
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of the defendant; and it must be likely that a favorable judicial decision will prevent or
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redress the injury.” Summers v. Earth Island Institute, 555 U.S. 488, 129 S. Ct. 1142, 1149
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(2009) (citation omitted).
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The Court finds that Plaintiff has failed to allege an injury that is concrete,
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particularized, and traceable to a Defendant in his action. Because the events which are
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the subject of the instant Motion occurred after the filing of this action and concern
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individuals at a different prison who are not named Defendants, the Court lacks jurisdiction
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to issue the order sought by Plaintiff. See Summers, 129 S. Ct. at 1149 (denying relief
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when favorable judicial decision would not redress the injury). Success on the merits of
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his first Amended Complaint would not entitle Plaintiff to any of the relief he seeks in this
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motion. Because a favorable judicial decision would not redress the injury alleged in the
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instant Motion, Plaintiff is not entitled to injunctive relief. Id.
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Accordingly, it is RECOMMENDED that Plaintiff's Motion for an Order to Show
Cause for a Preliminary Injunction (ECF No. 34) be DENIED.
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This Findings and Recommendation is submitted to the assigned United States
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District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule
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72-304 of the Local Rules of Practice for the United States District Court, Eastern District
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of California. Within thirty (30) days after being served with a copy, any party may file
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written objections with the court and serve a copy on all parties. Such a document should
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be captioned “Objections to Magistrate Judge's Findings and Recommendation.” The
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Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C).
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The parties are advised that failure to file objections within the specified time may waive
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the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
October 25, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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