Dury v. Copenhaver

Filing 31

FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 18 MOTION for Preliminary Injunctive Relief be Denied, signed by Magistrate Judge Gary S. Austin on 4/13/2013, referred to Judge O'Neill. Objections to F&R Due Within Thirty (30) Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW JAMES DURY,

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Plaintiff,
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vs.
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PAUL COPENHAVER,
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Defendant.
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______________________________)

1:12-cv-01726-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTIVE RELIEF BE DENIED
(Doc. 18.)
OBJECTIONS, IF ANY, DUE IN 30 DAYS

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I.

BACKGROUND

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Matthew James Dury ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). Plaintiff filed the Complaint commencing this action on October 19, 2012. (Doc. 1.)

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On November 13, 2012, Plaintiff filed the First Amended Complaint. (Doc. 5.)

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On November 26, 2012, Plaintiff filed a “Motion for a Notice to the Court” which the

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Court construes as a motion for preliminary injunctive relief. (Doc. 18.)

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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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In Plaintiff’s motion, he requests a court ruling on his allegations of conduct by prison

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officials occurring after this case was filed. Plaintiff alleges that on November 17, 2012,

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following orders by Defendant, Lieutenant Zaragoza assaulted Plaintiff and seized his personal

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property, to prevent Plaintiff from communicating with the Court and cause Plaintiff to default

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on his cases by failing to comply with court orders. Plaintiff also alleges that as of November

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20, 2012, he had not received any medical treatment for injuries sustained on November 17,

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2012 at the hands of staff. Plaintiff claims that the Defendant’s actions are proof that Plaintiff

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has no defense, and the court must rule immediately for the Plaintiff.

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By separate order, the Court dismissed Plaintiff=s First Amended Complaint for

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violation of Local Rule 220, and Plaintiff has been granted leave to file a Second Amended
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Complaint within thirty days. At this juncture, the Court does not yet have before it an actual

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case or controversy, nor does the Court have jurisdiction over Defendant in this action.

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Zepeda, 753 F.2d at 727. Moreover, the order requested by Plaintiff would not remedy any of

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the claims upon which this action proceeds. This action is proceeding against defendants based

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on events occurring before he filed this action in October 2012. Plaintiff now requests a court

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order protecting him from present actions. Because such an order would not remedy any of the

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claims upon which this action proceeds, the Court lacks jurisdiction to issue the order sought by

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Plaintiff, and Plaintiff=s motion must be denied.

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III.

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CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff=s motion for

preliminary injunctive relief, filed on November 26, 2012, be DENIED.

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These findings and recommendations 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.

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Dated:

April 13, 2013

/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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6i0kij8d

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