Sullivan v. Biter et.al.

Filing 31

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motions for Preliminary Injunctive Relief (Docs. 26 , 29 ) be DENIED re 28 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 9/20/2013. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. SULLIVAN,

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Plaintiff,

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vs.
M. D. BITER, et al.,

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Defendants.

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I.

1:12-cv-01662-AWI-GSA-PC
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT PLAINTIFF’S
MOTIONS FOR PRELIMINARY
INJUNCTIVE RELIEF BE DENIED
(Docs. 26, 29.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

BACKGROUND

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Michael J. Sullivan ("Plaintiff") is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. ' 1983. Plaintiff commenced this action on June 28, 2012

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at the U. S. District Court for the Northern District of California. (Doc. 1.) On October 9,

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2012, the case was transferred to the Eastern District of California. (Doc. 6.)

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On March 7, 2013 and July 15, 2013, Plaintiff filed motions for preliminary injunctive

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relief, which are now before the court. (Docs. 26, 29.)

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II.

PRELIMINARY INJUNCTIVE RELIEF

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The purpose of a preliminary injunction is to preserve the status quo if the balance of

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equities so heavily favors the moving party that justice requires the court to intervene to secure

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the positions until the merits of the action are ultimately determined. University of Texas v.

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Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is available to a plaintiff who
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Ademonstrates either (1) a combination of probable success and the possibility of irreparable

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harm, or (2) that serious questions are raised and the balance of hardship tips in its favor.@

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Arcamuzi v. Continental Air Lines, Inc., 819 F. 2d 935, 937 (9th Cir. 1987). Under either

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approach the plaintiff Amust demonstrate a significant threat of irreparable injury.@ Id. Also, an

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injunction should not issue if the plaintiff Ashows no chance of success on the merits.@ Id. At a

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bare minimum, the plaintiff Amust demonstrate a fair chance of success of the merits, or

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questions serious enough to require litigation.@ Id.

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Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court

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must have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95,

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102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation

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of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of

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Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). If the court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id. Thus, A[a] federal

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court may issue an injunction [only] if it has personal jurisdiction over the parties and subject

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matter jurisdiction over the claim; it may not attempt to determine the rights of persons not

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before the court.@ Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir.

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1985).

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Plaintiff’s Motions

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Plaintiff requests court orders directing prison officials to reinstate Plaintiff’s approved

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prior medical regimen, arranging for an outside magnetic resonance imaging (MRI)

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examination of Plaintiff’s entire spine, transporting Plaintiff back to spinal specialist Dr.

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Rambert, installing a HEPA filter in the air handler on the building where Plaintiff is housed,

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and transferring Plaintiff to a different institution without preexisting toxic health hazards and

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with appropriate medical facility ratings.

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By separate order, the court dismissed Plaintiff=s amended complaint for failure to state

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a claim against any defendant. Plaintiff has been granted leave to file a second amended

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complaint within thirty days. Thus, at this juncture, the court does not yet have before it an

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actual case or controversy, nor does the court have jurisdiction over any of the defendants in

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this action. Zepeda, 753 F.2d at 727. Therefore, Plaintiff’s motions must be denied.

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III.

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CONCLUSION AND RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff=s motions

for preliminary injunctive relief, filed on March 7, 2013 and July 15, 2013, be DENIED.

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These findings and recommendation are submitted to the United States District Judge

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

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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September 20, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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