Colbert v. Chavez et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Injunctice Relief, filed January 18, 2011, be DENIED; re 14 MOTION for TEMPORARY RESTRAINING ORDER filed by George K. Colbert ; referred to Judge Ishii,signed by Magistrate Judge Gerald B. Cohn on 7/30/2011. Objections to F&R due by 9/6/2011 (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE K. COLBERT,
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Plaintiff,
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CASE NO. 1:10-cv-00250-AWI-GBC (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING REQUEST
FOR INJUNCTIVE RELIEF
v.
P. CHAVEZ, et al.,
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(Doc. 14)
Defendants.
OBJECTIONS DUE WITHIN THIRTY DAYS
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I.
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Plaintiff George K. Colbert (“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. Plaintiff’s claims arise from events
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that occurred while Plaintiff was at the California Correctional Institute at Tehachapi, California.
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(Doc. 1). Plaintiff is currently housed at California State Prison, Sacramento, in Represa, California.
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(Doc. 13). On January 18, 2011, Plaintiff filed a motion for injunctive relief to provide emergency
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medical treatment to prevent Plaintiff from becoming paralyzed. (Doc. 14).
Procedural History
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II.
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“A preliminary injunction is an extraordinary remedy never awarded as a matter of
Preliminary Injunction
Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376
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right.”
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(2008)(citation omitted). “A plaintiff seeking a preliminary injunction must establish that
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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is
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in the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded
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upon a clear showing that the plaintiff is entitled to relief.
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omitted)(emphasis added). The Ninth Circuit has made clear that “[T]o the extent that our
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cases have suggested a lesser standard, they are no longer controlling, or even viable.”
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McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010), quoting Am. Trucking
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Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party
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has the burden of proof on each element of the test. Environmental Council of Sacramento
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v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).
Id. at 376 (citation
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‘A federal court may issue an injunction if it has personal jurisdiction over the parties and
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subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not
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before the court.’ Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda
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v. U.S. INS, 753 F.2d 719, 727 (9th Cir. 1985). The claims in this action arise from Plaintiff’s past
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conditions of confinement at the California Correctional Institution in Tehachapi and the court does
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not have jurisdiction in this action over prison officials at California State Prison, Sacramento. Thus,
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the court cannot issue an order remedying Plaintiff’s current conditions of confinement there. Price
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v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004).
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Plaintiff has not met his burden as the moving party. “[A] preliminary injunction is
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an extraordinary and drastic remedy, one that should not be granted unless the movant, by
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a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
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972 (1997) (quotations and citations omitted) (emphasis in original).
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preliminary injunction, such as that sought by plaintiff in the instant motion, “is subject to
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heightened scrutiny and should not be issued unless the facts and the law clearly favor the
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moving party.” Dahl v. Hem Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). As
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the moving party, it is Plaintiff who bears the burden. Plaintiff’s vague and conclusory
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allegations in his motion for injunctive relief does not meet Plaintiff’s burden to prevail on a motion
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for preliminary injunctive relief.
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A mandatory
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III.
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Conclusion and Reccomendations
Therefore, the court HEREBY RECOMMENDS that Plaintiff's motion for injunctive relief,
filed January 18, 2011, 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 thirty (30)
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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.
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Dated:
0jh02o
July 30, 2011
UNITED STATES MAGISTRATE JUDGE
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