Bussiere v. Cano et al

Filing 47

FINDINGS and RECOMMENDATIONS Recommending Denial of Plaintiff's 37 Motion for Injunctive Relief signed by Magistrate Judge Gerald B. Cohn on 09/02/2011. Referred to Judge Ishii; Objections to F&R due by 10/6/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,
v.

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CASE NO.

1:10-cv-00945-AWI-GBC (PC)

FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PLAINTIFF’S
MOTION FOR INJUNCTIVE RELIEF

CANO, et al.,
(ECF No. 37)

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Defendants.
/ OBJECTIONS DUE WITHIN THIRTY DAYS

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I.

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PROCEDURAL HISTORY
Plaintiff Arthur T. Bussiere (“Plaintiff”) is a state prisoner and is proceeding pro se

and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed

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this action on May 26, 2010. (ECF No. 1.) This action proceeds on Plaintiff’s Complaint
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against Defendants Cano and Lopez for deliberate indifference in violation of the Eighth
Amendment. (ECF Nos. 13 & 16.)
Pending before the Court is Plaintiff’s Motion for Injunctive Relief filed August 25,

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2011. (ECF No. 37.)

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II.

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LEGAL STANDARDS
To be entitled to preliminary injunctive relief, a party must demonstrate “that 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.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

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(citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)). The Ninth

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Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions

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as it relates to the showing a plaintiff must make regarding his chances of success on the

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merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622

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F.3d 1045, 1052-53 (9th Cir. 2010).

Under this sliding scale, the elements of the

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preliminary injunction test are balanced. As it relates to the merits analysis, a stronger

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showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of

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success on the merits. Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary
injunction “must be narrowly drawn, extend no further than necessary to correct the harm

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the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm.” 18 U.S.C. § 3626(a)(2).

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III.

ANALYSIS

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In the his Motion, Plaintiff states that he is being harassed by CDCR by being

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repeatedly moved from building to building at his current facility. Plaintiff states that the

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moving has hindered him from filing motions and also from receiving things from the Court.

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Plaintiff also states that he has been housed in places where he cannot use his electric

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typewriter and that his law library access has been curtailed. Plaintiff then makes several

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requests including copies of certain filings, an order requiring CDCR to house him in a

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specific place, that he have law library access, that his legal mail be delivered timely,

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among others.

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The Court finds that, at this stage in the proceedings, Plaintiff fails to meet the legal

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standards required to be granted injunctive relief. To succeed on such motion, Plaintiff

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must establish that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest. Plaintiff has not addressed any of the

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legal requirements to meet the standard. He does not state anything about the merits of

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this action, does not refer to any irreparable harm, the balance of equities or the public

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good. The Court also notes that CDCR is not a Defendant in this action, thus, the Court

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does not have jurisdiction over it.

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The Court also notes the following in response to several of Plaintiff’s concerns:
there are no pending deadlines for Plaintiff at the present time, thus library access is not

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necessary; handwritten pleadings are accepted as long as they are legible, thus, ability to
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use a typewriter is not necessary; Defendant Lopez’s waiver of service was returned

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executed the day after Plaintiff filed the present motion, which is why he had not yet

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received a copy; and Defendant Cano did not file a reply to Plaintiff’s Opposition to his

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Motion to Dismiss.

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IV.

CONCLUSION

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Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s Motion
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for Injunctive Relief be DENIED.
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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(1).

Within thirty (30) days after being served with these Findings and

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Recommendations, plaintiff may file written objections with the court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the right

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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:
1j0bbc

September 2, 2011
UNITED STATES MAGISTRATE JUDGE

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