David v. Gutierrrez et al

Filing 25

ORDER signed by Judge Oliver W. Wanger on 7/22/2011 adopting 19 FINDINGS AND RECOMMENDATIONS and denying 11 Motion for Preliminary Injunction. (Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

DAVID M. DAVID,

10
11
12

CASE NO. 1:11-cv-00061-OWW-SMS PC
Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S MOTION FOR A PRELIMINARY
INJUNCTION

v.
A. GUTIERREZ, et al.,

(ECF Nos. 11, 19, 24)
13

Defendants.
/

14
15

Plaintiff David M. David (“Plaintiff”) is a state prisoner proceeding pro se and in forma

16

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United

17

States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

18

On February 14, 2011, Plaintiff filed a motion seeking an order that Defendants cease and

19

desist all disciplinary actions against Plaintiff and restore his good time credits and behavioral point

20

credits; provide him copies of legal materials and court paper; cease and desist all retaliation against

21

Plaintiff; restore the use of the yard chapel for Jewish services; feed Jewish inmates in their cells,

22

and “out-count” Jewish inmates on Fridays so they may attend services. On May 10, 2011, the

23

Magistrate Judge filed findings and recommendations herein which was served on Plaintiff. (ECF

24

No. 19.) Plaintiff filed an amended complaint on June 13, 2011, and objections to the findings and

25

recommendations on July 18, 2011. (ECF No. 23, 24.)

26

In his objection Plaintiff states that since the denial of his motion for a preliminary injunction

27

was based upon there being no complaint on file in this action, and he has cured that by filing an

28

amended complaint, the preliminary injunction should be issued. Plaintiff is currently incarcerated
1

1

at Mule Creek State Prison. The amended complaint in this action alleges claims against fourteen

2

defendants and 100 Does. Plaintiff is alleging multiple unrelated claims that occurred from April

3

22, 2010, through December 28, 2010, while he was incarcerated at Pleasant Valley State Prison.

4

For each form of relief sought, Plaintiff must demonstrate standing. Mayfield v. United

5

States, 599 F.3d 964, 969 (9th Cir. 2010) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.

6

Inc., 528 U.S. 167, 185 (2000)), petition for cert. filed, 79 U.S.L.W. 3007 (U.S. Jun. 22, 2010) (No.

7

09-1561). Generally, when an inmate seeks injunctive or declaratory relief concerning the prison

8

where he is incarcerated, his claims for such relief become moot when he is no longer subjected to

9

those conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365,

10

1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Since Plaintiff is no

11

longer incarcerated at Pleasant Valley State Prison, the pendency of this action does not confer

12

jurisdiction to issue a preliminary injunction against officials at Mule Creek State Prison.

13

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

14

de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings

15

and recommendations to be supported by the record and by proper analysis.

16

Accordingly, IT IS HEREBY ORDERED that:

17

1.

The findings and recommendations, filed May 10, 2011, is adopted in full; and

18

2.

Plaintiff’s motion for a preliminary injunction filed February 14, 2011, is DENIED.

19

IT IS SO ORDERED.

20

Dated:
July 22, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
2