Payan v. Tate et al

Filing 35

FINDINGS And RECOMMENDATIONS Regarding Plaintiff's Motion For Injunctive Relief (Doc. 22 ), signed by Magistrate Judge Dennis L. Beck on 8/25/2014. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 9/29/2014.(Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

MICHAEL J. PAYAN,

12
13
14
15

Plaintiff,
vs.
H. TATE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:13cv00807 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
INJUNCTIVE RELIEF
(Document 22)

16
17

Plaintiff Michael J. Payan (“Plaintiff”), a state prisoner proceeding pro se and in forma

18

pauperis, filed this civil rights action on May 28, 2013. This action is proceeding on the

19

following cognizable claims: (1) retaliation in violation of the First Amendment by Defendants

20
21
22

Bingamon, Tate and Vu; and (2) deliberate indifference to a serious medical need in violation of
the Eighth Amendment against Defendants Bingamon, Tate, Vu, Sheisha and Joaquin.
On April 16, 2014, Defendants filed a motion to dismiss the Eighth Amendment claim

23

pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is pending.
24
25
26
27

On May 5, 2014, Plaintiff filed a letter which this Court construed as a motion for
injunctive relief. Defendants opposed the motion on June 24, 2014, and Plaintiff filed his reply
on August 22, 2014.

28
1

1
2
3

In his motion, Plaintiff requests that the Court order that he no longer be treated by
Defendant Tate. Plaintiff argued that Defendant Tate was retaliating against him and failing to
provide medical care.

4

In their opposition, Defendants indicate that Plaintiff has been assigned to a different

5

primary care doctor at CCI. Plaintiff was subsequently transferred, and in his reply, admits that
6
7
8

his request for relief is now moot because he’s at a new institution and has a new treating
physician.1
Accordingly, the Court recommends that Plaintiff’s motion be denied as moot. As

9
10

Plaintiff has recognized, when an inmate seeks injunctive or declaratory relief concerning the

11

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

12

subjected to those conditions. Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012); Nelson

13

v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995);

14

Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).

15

RECOMMENDATION

16
17

For these reasons, the Court RECOMMENDS that Plaintiff’s motion for injunctive relief
be DENIED AS MOOT.

18

These Findings and Recommendations are submitted to the United States District Judge

19

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days
20
21
22

after being served with these Findings and Recommendations, Plaintiff may file written
objections with the court. Such a document should be captioned “Objections to Magistrate

23
24
25
26
27
1

28

Plaintiff’s reply also argues that “injunctive relief was the correct course of action and Plaintiff would have
prevailed.” ECF No. 34, at 2. As Plaintiff’s request is moot, the Court will not address the motion on the merits.
2

1
2
3

Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections
within the specified time may waive the right to appeal the District Court's order. Martinez v.
Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

4
5

IT IS SO ORDERED.

6
7

Dated:

/s/ Dennis

August 25, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3