Ivory v. Tilton, et al.

Filing 94

FINDINGS and RECOMMENDATIONS recommending that 65 Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order be DENIED re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 7/10/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN IVORY,

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Plaintiff,

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1:09-cv-01272-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTIVE RELIEF BE DENIED
(Doc. 65.)

v.
JAMES E. TILTON, et al.,

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OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

Defendants.
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I.

BACKGROUND

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Plaintiff, Norman Ivory (“Plaintiff”), is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the

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original Complaint filed by Plaintiff on July 20, 2009, against defendants Correctional Officer S.

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Meraz for use of excessive force in violation of the Eighth Amendment, and Correctional Captain

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M. V. Sexton for retaliation in violation of the First Amendment.1 (Doc. 1.) Plaintiff is presently

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incarcerated at the California Substance Abuse Treatment Facility and State Prison ("SATF") in

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Corcoran, California.

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On September 1, 2011, Plaintiff filed a motion for a preliminary injunction and a temporary

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restraining order, via a court order directing prison officials at Pleasant Valley State Prison (“PVSP”)

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All other claims and defendants were dismissed from this action by the Court on August 23, 2010, based on
Plaintiff’s failure to state a claim. (Doc. 30.)

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to transfer him to either Richard J. Donovan Correctional Facility in San Diego, California,

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California Medical Facility in Vacaville, California, or California Mens Colony in San Luis Obispo,

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California, because of health concerns. (Doc. 65.) Plaintiff also requests the Court to order prison

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officials to refrain from harassment, retaliation, and obstruction of justice against Plaintiff. Id.

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Plaintiff's motion for preliminary injunctive relief is now before the Court.

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II.

PRELIMINARY INJUNCTION

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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.” Id. at 374 (citations omitted). An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376

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(citation omitted) (emphasis added).

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Federal courts are courts of limited jurisdiction and in considering a request for preliminary

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injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before

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it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660,

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1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc.,

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454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982). If the Court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id. Requests for prospective

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relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which

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requires that the Court find the “relief [sought] is narrowly drawn, extends no further than necessary

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

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violation of the Federal right.”

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Plaintiff has requested a court order directing prison officials at PVSP to act. However, the

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order requested by Plaintiff would not remedy any of the claims upon which this action proceeds.

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This action is proceeding against defendants for excessive force and retaliation, based on events

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occurring at Avenal State Prison in Avenal, California, before he filed this action in July 2009.

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Plaintiff now requests a court order protecting him from present and future actions. Because such
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an order would not remedy any of the claims upon which this action proceeds, the Court lacks

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jurisdiction to issue the order sought by Plaintiff, and Plaintiff’s motion must be denied.

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III.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for

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preliminary injunction and temporary restraining order, filed on September 1, 2011, be DENIED.

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These findings and recommendations are 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 thirty days

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after being served with these findings and recommendations, the parties may file written objections

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with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings

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and Recommendations." The parties are advised that failure to file objections within the specified

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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

July 10, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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