Thomas v. Davey et al

Filing 19

FINDINGS and RECOMMENDATIONS Regading Plaintiff's 7 13 14 Motions for Emergency Preliminary Injunction and Motion for Order to Show Cause signed by Magistrate Judge Barbara A. McAuliffe on 01/26/2017. Referred to Judge Ishii; Objections to F&R due by 2/14/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD THOMAS,

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Plaintiff,
v.
DAVE DAVEY, et al.,

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Defendants.

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Case No.: 1:16-cv-00925-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTIONS FOR
EMERGENCY PRELIMINARY INJUNCTION
AND MOTION FOR ORDER TO SHOW CAUSE
(ECF Nos. 7, 13, 14)
FOURTEEN-DAY DEADLINE

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Plaintiff Edward Thomas (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 27, 2016. Currently before

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the Court are Plaintiff’s motions for preliminary injunction, filed on July 15, 2016, and October 26,

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2016, and Plaintiff’s motion for the court to issue an order to show cause why a permanent injunction

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should not be issued. (ECF Nos. 7, 13, 14).

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I.

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On October 24, 2016, the Court screened Plaintiff’s first amended complaint and dismissed it

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with leave to amend within thirty (30) days. (ECF No. 12). On November 4 and November 18, 2016,

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Plaintiff filed consecutive motions for reconsideration of the Court’s screening order by the district

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judge. (ECF Nos. 16, 17). The motions for reconsideration are currently pending, and a second

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amended complaint has not been filed.

Background

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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 initial motion for injunctive relief, Plaintiff requests that the Court order Defendant

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Warden Dave Davey and any other officers, agents or person in active concern and participation with

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

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reinstate Plaintiff’s single cell status and “permanently restrain said defendants from assigning any

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further[r] or future inmates into the cell with Plaintiff.” (ECF No. 7 at p. 1). Plaintiff also requests an

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order restraining or prohibiting defendants from “further and future acts of any form of ‘retaliations’

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and ‘reprisal’ (disciplinary or otherwise) against Plaintiff . . . resulting in any form of disciplinary

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punishments and confiscation of Plaintiff’s real and personal property items (i.e. television, CD player,

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ADA-Cassette players, CDs, cassette tapes, books, and legal documents.) or restrict Plaintiff from his

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‘A-I-A’ privilege group status . . . .” (ECF No. 7 at 2). Plaintiff’s subsequent motion for a preliminary

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injunction seeks substantially similar relief. (ECF No. 14).

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Plaintiff’s first amended complaint was dismissed with leave to amend, and a second amended

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complaint has not been filed. Plaintiff also has filed motions for reconsideration of the Court’s

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screening order dismissing the first amended complaint with leave to amend. As a result, at this stage

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of the proceedings, the Court does not have before it an actual case or controversy. The Court also

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does not have jurisdiction over the defendants in this action, as there has been determination that

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Plaintiff has stated cognizable claims for relief and no service of any complaint has been ordered.

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Thus, the Court does not have jurisdiction at this time to issue any injunctive relief. Until such time as

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there is an operative complaint with cognizable claims for relief, any requests for preliminary

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injunctive relief are premature.

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III.

Conclusion and Recommendation

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

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preliminary injunction, filed July 15 and October 26, 2016, and his related motion for an order to show

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cause, filed on October 26, 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 26, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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