Pombrio v. Clark

Filing 21

FINDINGS And RECOMMENDATION Regarding Petitioner's Motions For Release And Preliminary Injunction (Docs. 15 , 20 ), signed by Magistrate Judge Dennis L. Beck on 8/16/2010. It is RECOMMENDED that Petitioner's motions for release and injunctive relief be DENIED. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 9/20/2010. (Scrivner, E)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 KEN CLARK, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on February 1, 2010, and an 18 amended petition on June 1, 2010. Petitioner claims his constitutional rights were violated in 19 relation to certain disciplinary proceedings. 20 Now pending before the Court is Petitioner's motion for release and preliminary 21 injunction filed on August 2, 2010, and August 9, 2010. 22 DISCUSSION 23 To prevail in obtaining a preliminary injunction, the moving party must show that 24 irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v. Selecky, 586 25 26 S.Ct. 365, 172 L.Ed.2d 249 (2008)). Winter requires a party to demonstrate: (1) he is likely to 27 succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an injunction; 28 1 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., __ U.S. __, 129 / [Docs. 15, 20] v. SCOTT E. POMBRIO, Petitioner, 1:10-cv-00191-OWW-DLB (HC) FINDINGS AND RECOMMENDATION REGARDING PETITIONER'S MOTIONS FOR RELEASE AND PRELIMINARY INJUNCTION UNITED STATES DISTRICT COURT 1 2 3 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) the balance of hardships tips in his favor; and (4) an injunction is in the public interest. Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374.) In his motions, Petitioner merely argues the merits of his underlying petition, and after review of all documents in the record the Court finds he has not demonstrated that irreparable injury is likely absent an injunction. Petitioner claims that he is being falsely imprisoned and he is entitled to release from any further parole term. Petitioner is challenges certain disciplinary proceedings which have been issued against him, and any such injury does not appear likely given that this Court can credit Petitioner any relief to which he may be entitled if the Court finds his claims to have merit. RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Petitioner's motions for release and injunctive relief be DENIED. This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within fourteen (14) days after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: 3b142a August 16, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 2

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