Green v. Ferguson, et al.
Filing
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FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's Motion for Preliminary Injunction be DENIED 3 , signed by Magistrate Judge Jennifer L. Thurston on 8/6/11: Matter referred to Judge Ishii; Objections due fourteen days after being served with these findings and recommendations. (Hellings, J)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VENCIL GREEN,
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Case No. 1:10-cv-01768 AWI JLT (PC)
Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR A PRELIMINARY
INJUNCTION BE DENIED
vs.
DR. LARRY N. FERGUSON, et al.,
(Doc. 3)
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Defendants.
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/
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action
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pursuant to 42 U.S.C. § 1983. Now pending before the Court is Plaintiff’s motion for a preliminary
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injunction filed September 27, 2010. (Doc. 3.) Plaintiff seeks an injunction requiring prison officials
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to provide Plaintiff group treatment for his exhibitionism. (Id.)
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A preliminary injunction is an “extraordinary remedy.” Winters v. Natural Resources Defense
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Council, Inc., 555 U.S. 7, __ , 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff seeking a
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preliminary injunction 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 favor, and
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that an injunction is in the public interest.” Id. at 374 (citations omitted). A stronger showing of one
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element, however, may offset a weaker showing of another. Alliance for the Wild Rockies v. Cottrell,
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632 F.3d 1127, 1131-35 (9th Cir. 2011) (the sliding scale approach to balancing the elements for a
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preliminary injunction survives Winters).
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Here, Plaintiff has not met his burden of proving that preliminary relief is warranted. Notably,
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Plaintiff has not provided the Court with any evidence, or even an argument, in connection with his
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motion for a preliminary injunction. Plaintiff simply states that he would like a court order requiring
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prison officials to provide Plaintiff group treatment for his exhibitionism. This is insufficient to support
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a motion for preliminary relief. See Environmental Council of Sacramento v. Slater, 184 F. Supp. 1016,
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1027 (E.D. Cal. 2000) (party moving for a preliminary injunction carries the burden of proof on each
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element of the test).
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More importantly, it appears that Plaintiff is a class member in Coleman v. Schwarzenegger,
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Case No. 2:90-cv-0520 LKK JFM (PC), which is comprised of all mentally ill inmates incarcerated in
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California’s prisons. Because Plaintiff is a member of this class, he must bring his “claims for equitable
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relief . . . through the class representative until the class action is over or the consent decree is modified.”
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McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991). Plaintiff may not seek injunctive relief by
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initiating a separate, individual suit. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979). Any
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request for injunctive relief in this case, including the instant motion for a preliminary injunction, must
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therefore be denied.
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Accordingly, for all the reasons set forth above, IT IS HEREBY RECOMMENDED that
Plaintiff’s September 27, 2010 motion for a preliminary injunction (Doc. 3) be DENIED.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within fourteen days after being
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served with these findings and recommendations, Plaintiff may file written objections with the Court.
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Any document containing written objections 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 specified
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time may waive the right to appeal the District Court’s order. See 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: August 6, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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