Andersen v. Kernan

Filing 17

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 7 Motion for Preliminary Injunction and 11 Motion for Order to Show Cause, signed by Magistrate Judge Barbara A. McAuliffe on 1/23/17. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW S. ANDERSEN,

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Plaintiff,
v.
SCOTT KERNAN,

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Defendant.

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Case No.: 1:16-cv-00369-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION AND MOTION
FOR ORDER TO SHOW CAUSE
(ECF Nos. 7, 11)
FOURTEEN-DAY DEADLINE

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Plaintiff Andrew S. Andersen (“Plaintiff”), a state prisoner proceeding pro se, filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on March 17, 2016. Currently before the Court are

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Plaintiff’s motion for preliminary injunction, filed on April 11, 2016, and Plaintiff’s motion for the

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court to issue an order to show cause why the motion for preliminary injunction should not be granted.

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(ECF Nos. 7, 11). On October 3, 2014, Defendants filed a motion for partial summary judgment to

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revoke Plaintiff’s in forma pauperis status and dismiss this action. (ECF No. 35.)

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I.

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On May 25, 2016, the Court screened Plaintiff’s complaint and issued findings and

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recommendations recommending that (1) this action be dismissed for failure to state a claim, and (2)

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Plaintiff’s pending motions be denied as moot. (ECF No. 12). Plaintiff filed objections to the

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findings and recommendations on June 22, 2016. Following consideration of Plaintiff’s objections,

Background

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the Court vacated the findings and recommendations and ordered Plaintiff file an amended complaint.

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(ECF No. 14). Plaintiff filed his first amended complaint on July 20, 2016. (ECF No. 15). The Court

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has not yet screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A.

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II.

Discussion

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

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

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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,

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

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

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An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at

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22 (citation omitted).

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Federal courts are courts of limited jurisdiction and, in considering a request for injunctive

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relief, the Court is bound by the requirement that as a preliminary matter, it have before it an actual

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case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983);

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Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464,

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471, 102 S.Ct. 752, 757-58 (1982). If the Court does not have an actual case or controversy before it,

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it has no power to hear the matter in question. Lyons, 461 U.S. at 102; Valley Forge Christian Coll.,

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454 U.S. at 471. Thus, “[a] federal court may issue an injunction [only] if it has personal jurisdiction

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over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the

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rights of persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727

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(9th Cir.1983); see Fed. R. Civ. P. 65(d) (listing persons bound by injunction).

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In his motion for injunctive relief, Plaintiff requests that the Court order the defendant, his

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successor, agents, employees and all other persons working in concert with defendant to provide

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Plaintiff with “the wherewithal to have a realistic opportunity to meet the parole suitability

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requirements of the Board of Parole Hearings,” which should “include a treatment program designed

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to meet the BPH criteria as well [as] any other additional resources and services as needed.” (ECF No.

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7 at 2-3.) Plaintiff also requests that any transfer necessary to fulfill these requirements not result in

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the Plaintiff losing property or his rehabilitation materials. (Id. at 3.)
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The Court has not screened Plaintiff’s first amended complaint to determine whether Plaintiff

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states a cognizable claim. Therefore, at this stage of the proceedings, the Court does not have before it

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an actual case or controversy. The Court also does not have jurisdiction over the defendant in this

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action, as no service of the complaint has been ordered. Thus, the Court does not have jurisdiction at

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this time to issue any preliminary injunctive relief.

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screened in due course. If it is determined that the amended complaint states cognizable claims for

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relief, Plaintiff may then seek preliminary injunctive relief related to those claims. Until such time,

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Plaintiff’s request for a preliminary injunction is premature.

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III.

Plaintiff’s first amended complaint will be

Conclusion and Recommendation

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For the reasons stated, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for a

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preliminary injunction, filed April 11, 2016, and his related motion for an order to show cause, filed

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on May 17, 2016, be DENIED.

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These Findings and Recommendations will be 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)(1). Within fourteen (14)

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

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

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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

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

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 23, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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