Cochran v. Sherman et al

Filing 44

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motions 16 , 19 , 20 , 21 , 22 , and 27 are DENIED; ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge; new case number is 1:15-cv-01388 DAD-BAM (PC), signed by Magistrate Judge Barbara A. McAuliffe on 07/24/17. Objections to F&R due by 8/28/2017(Martin-Gill, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

BILLY COY COCHRAN,
Plaintiff,

10
v.

11
12

S, SHERMAN, et al.,
Defendants.

13
14
15
16
17

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:15-cv-01388-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR COPY
OF CASE FILE, (ECF No. 16), DEFENDANTS’
MOTION TO DISMISS, (ECF No. 19), AND
RELATED MOTIONS (ECF Nos. 20, 21, 27), AND
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, (ECF No. 22)
THIRTY (30) DAY DEADLINE

18

Plaintiff Billy Cochran is appearing pro se and in forma pauperis in this civil rights action

19

pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s first amended complaint against

20

Defendants S. Sherman and J. Barba for the violation of his First Amendment rights based upon the

21

denial of his name change for religious purposes.

22

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

23

This matter was referred to a United States

Currently pending before the Court are several motions upon which the Court shall make

24

findings and recommendations.

25

I.

Pending Motions

26

A.

27

On October 12, 2016, Plaintiff filed a motion seeking an order to prison officials to provide

28

him his legal property more quickly than it was being processed due to a transfer. (ECF No. 16.)

Motion for Copy of Case File

1

1

Plaintiff argued he required the property to work on prosecuting his case. Due to the relief requested,

2

the Court construes this motion as a motion for a preliminary injunction.

3

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

4

Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 376 (2008) (citation

5

omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

6

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

7

balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations

8

omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to

9

relief. Id. at 22 (citation omitted).

10

Here, the pending case concerning a denial of a religious name change does not give the Court

11

jurisdiction over prison officials generally, nor over issues not related to the claims at issue in this

12

matter. Moreover, the request is moot, as Plaintiff now contends the property was returned to him.

13

(ECF No. 39, p. 42.) Accordingly, the Court recommends that this motion be denied.

14

B.

Motion to Dismiss

15

On November 9, 2016, Defendants filed a motion to dismiss Plaintiff’s complaint. (ECF No.

16

19.) The motion sought to dismiss Plaintiff’s claim for injunctive relief pursuant to the Religious

17

Land Use and Institutionalized Persons Act (RLUIPA). Subsequently, Plaintiff filed a motion for

18

leave to file a first amended complaint, (ECF No. 12), which was granted, (ECF No. 28).

19

As the Court found that Plaintiff did not state a claim under RLUIPA in his first amended

20

complaint, and this action only proceeds on Plaintiff’s claim against Defendants S. Sherman and J.

21

Barba for the violation of his First Amendment rights, Defendants’ motion should be denied as moot.

22

See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (A properly filed “amended

23

complaint supersedes the original [complaint], the latter being treated thereafter as non-existent.”)

24

Likewise, Plaintiff’s motion to permit discovery so that he can respond to this motion, (ECF

25

No. 20, 27), or requesting the Court send documents filed on the docket to assist him in responding to

26

such motion, (ECF No. 21), should be denied as moot.

27

///

28

///
2

Plaintiff’s Motion for Summary Judgment

1

C.

2

On February 6, 2017, Plaintiff filed a motion for summary judgment pursuant to Federal Rule

3

of Civil Procedure 56, asserting that Defendants have no defense to violating his rights. (ECF No. 22.)

4

Defendants opposed the motion as premature because it was filed before they filed an answer, (ECF

5

No. 24), and in his reply to that opposition, Plaintiff agreed that the motion was prematurely made,

6

(ECF No. 26.)

7

With regard to summary judgment, Federal Rule of Civil Procedure 56 contemplates that, prior

8

to filing a motion for summary judgment, the opposing party should have a sufficient opportunity to

9

discover information essential to its position. Fed. R. Civ. P. 56(d); see also Anderson v. Liberty

10

Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505 (1986). Accordingly, the Court recommends that

11

Plaintiff’s motion for summary judgment be denied, as premature.

12

II.

13
14

Conclusion, Order, and Recommendation
Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district

judge to this action.

15

Additionally, for the reasons described above, it is HEREBY RECOMMENDED that:

16

1.

DENIED;

17
18

2.

3.

4.

25

Plaintiff’s motion requesting documents, filed on November 22, 2016 (ECF No. 21), be
DENIED, as moot; and

23
24

Plaintiff’s motion to defer a ruling and permit discovery, filed on November 22, 2016
(ECF No. 20), and March 8, 2017 (ECF No. 27), be DENIED, as moot;

21
22

Defendants’ motion to dismiss filed on November 9, 2016, (ECF No. 19), be DENIED,
as moot;

19
20

Plaintiff’s motion for copy of case file, filed on October 12, 2016 (ECF No. 16), be

5.

Plaintiff’s motion for summary judgment, filed on February 6, 2017 (ECF No. 22) be
DENIED, as premature.

26

These Findings and Recommendations will be submitted to the United States District Judge

27

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

28

after being served with these Findings and Recommendations, the parties may file written objections
3

1

with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

2

Recommendations.” The parties are advised that failure to file objections within the specified time

3

may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal.

4

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

5

1394 (9th Cir. 1991)).

6
7
8
9

IT IS SO ORDERED.
Dated:

/s/ Barbara

July 24, 2017

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4