Ervin v. California Department of Corrections and Rehabilitation et al

Filing 23

FINDINGS and RECOMMENDATIONS Recommending Denying Plaintiff's Motions for Injunctive Relief 16 , signed by Magistrate Judge Sandra M. Snyder on 8/9/11. Referred to Judge Ishii; Objections to F&R Deadline: 20-Days. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NOKKUWA K. ERVIN,

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CASE NO. 1:10-cv-01859-AWI-SMS PC

Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING PLAINTIFF’S
MOTIONS FOR INJUNCTIVE RELIEF

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,

(ECF Nos. 16)
TWENTY DAY DEADLINE

Defendants.
/

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Plaintiff Nokkuwa K. Ervin (“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. Currently pending before the Court

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are Plaintiff’s motions for injunctive relief, filed December 7, 2010. (ECF Nos. 16.)

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Plaintiff seeks temporary restraining orders and injunctions directing that his disabled

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permanent disability status be restored; he be issued orthopedic shoes, a cane, and an egg crate

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mattress; arrangements be immediately made for him to be examined by a qualified neurologist and

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he be provided with a prescription for pain management therapy and physical therapy. (First

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Amended Compl. 29-30, ECF No. 16.) Plaintiff also seeks a temporary restraining order and

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injunction prohibiting any further harassment of Plaintiff and directing that he be immediately

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released from administrative segregation. (Id. at 41-42.)

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“A temporary restraining order is designed to preserve the status quo until there is an

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opportunity to hold a hearing on the application for a preliminary injunction.” Whitman v. Hawaiian

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Tug and Barge Corp./Young Bros. Ltd. Salaried Pension Plan, 27 F.Supp.2d 1225, 1228 (D. Haw.
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1998). The factors considered for issuing a temporary restraining order are the same as the standards

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for issuing a preliminary injunction. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.

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2008).

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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.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) quoting Winter, 129 S. Ct. at 374. An

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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter,

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129 S. Ct. at 376 (citation omitted) (emphasis added).

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For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield

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v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This requires

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Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete and

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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be

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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial

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decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

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(2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).

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In addition, any award of equitable relief is governed by the Prison Litigation Reform Act,

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which provides in relevant part, “Prospective relief in any civil action with respect to prison

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conditions shall extend no further than necessary to correct the violation of the Federal right of a

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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless

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the court finds that such relief is narrowly drawn, extends no further than necessary to correct the

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

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the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

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In a separate order issued concurrently with this order, the Court dismissed Plaintiff’s

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complaint, with leave to amend. Until Plaintiff files an amended complaint and the Court is able to

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determine which claims are cognizable and appropriately raised in this action, the Court lacks
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jurisdiction to issue any preliminary injunctions. 18 U.S.C. § 3626(a)(1)(A); Summers, 129 S.Ct.

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at 1149; Mayfield, 599 F.3d at 969. Further, some of the orders sought by Plaintiff cannot be issued

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even assuming Plaintiff is able to amend to state one or more cognizable claims. For example, past

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misconduct usually does not confer standing to seek an order aimed at preventing future harm. City

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of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); Mayfield, 599 F.3d 970. Additionally, Plaintiff’s

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equitable claim based on defendants’ violation of the Armstrong remedial plan must be pursued

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through counsel for the class. Frost v. Symington, 197 F.3d 348, 359 (9th Cir. 1999). Individual

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suits for injunctive and equitable relief from alleged unconstitutional prison conditions that are the

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subject of an existing class action “must be made through the class representative until the class

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action is over or the consent decree is modified.” McNeil v. Guthrie, 945 F.2d 1163, 1166 (10th

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Cir.1991).

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Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motions for injunctive relief,
filed December 7, 2010, be DENIED.

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It is ordered that this finding and recommendation be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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TWENTY (20) DAYS after being served with the finding and recommendation, Plaintiff may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Finding and Recommendation.” 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:
icido3

August 9, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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