Nguyen v. Biter et al

Filing 43

FINDINGS and RECOMMENDATIONS Recommending Plaintiff's Motions for Preliminary Injunctive Relief be Denied, with Prejudice, for Lack of Jurisdiction, signed by Magistrate Judge Sheila K. Oberto on 12/20/11. Referred to Judge Ishii; 30-day objection deadline. (Verduzco, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY NGUYEN, 10 11 12 13 CASE NO. 1:11-cv-00809-AWI-SKO PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED, WITH PREJUDICE, FOR LACK OF JURISDICTION Defendant. (Docs. 40-42) v. M. D. BITER, 14 THIRTY- DAY OBJECTION DEADLINE / 15 16 Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this 17 civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. On December 16, 2011, Plaintiff 18 filed motions seeking a preliminary injunction admonishing Correctional Officer Ortiz, disciplining 19 him, and removing him from the prison, and prohibiting correctional officers from retaliating against 20 Plaintiff and harassing Plaintiff. Plaintiff also seeks an order prohibiting prison officials from 21 separating him from his cellmate and an order mandating the removal of an inmate appeal from his 22 file because of its future effect on his parole proceedings. 23 This action is proceeding on Plaintiff’s claim that Defendant Biter is subjecting Plaintiff to 24 water contaminated with arsenic, in violation of the Eighth Amendment. (Doc. 37.) The Court’s 25 jurisdiction in this action is limited to that legal claim and to the current parties to this action. 26 Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 1149 (2009); Mayfield v. 27 United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff may not, via this action, seek orders 28 directed at remedying his current, unrelated conditions of confinement. Summers, 555 U.S. at 493, 1 1 129 S.Ct. at 1149; Mayfield, 599 F.3d at 969. Accordingly, the Court HEREBY RECOMMENDS 2 that Plaintiff’s motions be denied, with prejudice.1 3 These Findings and Recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 5 days after being served with these Findings and Recommendations, Plaintiff may file written 6 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 8 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 9 1153 (9th Cir. 1991). 10 11 IT IS SO ORDERED. 12 Dated: ie14hj December 20, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 Plaintiff’s motions also fail to make the requisite showing, supported by admissible evidence, to obtain a preliminary injunction. W inter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20-4, 129 S.Ct. 365, 376 (2008). However, it is unnecessary to reach the merits of Plaintiff’s motions in light of the fact that the jurisdictional issue is fatal to his requests for relief. Summers, 555 U.S. at 493, 129 S.Ct. at 1149; Mayfield, 599 F.3d at 969. 2

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