Bell v. Heberling et al

Filing 60

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION TO COMPEL THE FILING AND PROCESSING OF HIS ADMINISTRATIVE REMEDY re 58 signed by Magistrate Judge Stanley A. Boone on 2/5/2013. Referred to Judge Anthony W. Ishii; Objections to F&R due by 3/12/2015. (Lundstrom, T)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HORACE BELL, 12 Plaintiff, 13 14 v. S HEBERLING, et al., 15 Defendants. 16 19 Case No.: 1:12-cv-01248-AWI-SAB (PC) FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF’S MOTION TO COMPEL THE FILING AND PROCESSING OF HIS ADMINISTRATIVE REMEDY [ECF No. 58] Plaintiff Horace Bell is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 17 18 ) ) ) ) ) ) ) ) ) ) 1983. On January 26, 2015, Plaintiff filed a motion to compel the filing and processing of his 20 administrative remedy. The Court construes Plaintiff’s motion as a request for a preliminary 21 injunction. 22 I. 23 DISCUSSION 24 A preliminary injunction should not issue unless necessary to prevent threatened injury that 25 would impair the court’s ability to grant effective relief in a pending action. “A preliminary injunction 26 … is not a preliminary adjudication on the merits but rather a device for preserving the status quo and 27 preventing the irreparable loss of right before judgment.” Sierra On-Line, Inc. v. Phoenix Software, 28 Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents the exercise of a far 1 1 reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. V. Tapeprinter, 2 Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard for preliminary injunctive relief 3 requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer 4 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and 5 that an injunction is in the public interest.’” Stormans, Inc., v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 6 2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In cases brought by 7 prisoners involving conditions of confinement, any preliminary injunction “must be narrowly drawn, 8 extend no further than necessary to correct the harm the court finds requires preliminary relief, and be 9 the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). Here, Plaintiff has not met his burden of proving that he is likely to succeed on the merits. Nor 10 11 has Plaintiff shown that he will suffer irreparable harm in the absence of injunctive relief. Although 12 Plaintiff requests the Court order prison officials to process a grievance, there is no discernable 13 irreparable injury to him if he is unable to process such grievance. Plaintiff has also not demonstrated 14 that the balance of equities tips in his favor, or that an injunction is in the public interest. As Plaintiff 15 has failed to meet his burden of proving that he is entitled to a preliminary injunction, his motion must 16 be denied. 17 II. 18 RECOMMENDATION 19 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a 20 preliminary injunction be DENIED. These Findings and Recommendations will be submitted to the United States District Judge 21 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 23 after being served with these Findings and Recommendations, the parties may file written objections 24 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendations.” The parties are advised that failure to file objections within the specified time // 26 // 27 // 28 2 1 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: 6 February 5, 2015 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?