Thomas v. Davey et al
Filing
44
FINDINGS and RECOMMENDATIONS Recommending Denial of 37 41 Motion for Injunctive Relief signed by Magistrate Judge Barbara A. McAuliffe on 11/06/2017. Referred to Judge Ishii; Fourteen-Day Deadline. (Flores, E)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
EASTERN DISTRICT OF CALIFORNIA
7
8
EDWARD THOMAS,
9
10
11
12
Plaintiff,
v.
DAVE DAVEY, et al.,
Defendants.
Case No. 1:16-cv-00925-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL OF MOTION
FOR INJUNCTIVE RELIEF
(ECF Nos. 37, 41)
FOURTEEN (14) DAY DEADLINE
13
14
Plaintiff Edward Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma
15
pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on June
16
27, 2016. (ECF No. 1.)
17
On June 22, 2017, the Court issued an order dismissing Plaintiff’s second amended
18
complaint and granting leave to file an amended complaint within thirty days. (ECF No. 33.) On
19
August 3, 2017, Plaintiff filed the instant “Motion for Court Order.” (ECF No. 37.) Plaintiff
20
filed a supplement in support of his motion on September 15, 2017. (ECF No. 41.) Plaintiff
21
requests a court order granting access to his typewriter, legal property, and access to the law
22
library, due to an injury to his right hand that occurred on July 26, 2017. The Court construes this
23
filing as a motion for preliminary injunction.
24
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
25
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a
26
preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to
27
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
28
favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction
1
1
may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation
2
omitted).
3
“[A] court has no power to adjudicate a personal claim or obligation unless it has
4
jurisdiction over the person of the defendant.” Zenith Radio Corp. v. Hazeltine Research, Inc.,
5
395 U.S. 100, 110 (1969); SEC v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). In this case,
6
Plaintiff has not yet filed an amended complaint, the Court has not screened Plaintiff’s amended
7
complaint to determine whether it states a cognizable claim, no defendant has been ordered
8
served, and no defendant has yet made an appearance. At this juncture, the Court lacks personal
9
jurisdiction over the defendant and it cannot issue an order requiring it to take any action. Zenith
10
11
Radio Corp., 395 U.S. at 110; Ross, 504 F.3d at 1138−39.
Similarly, the pendency of this action does not give the Court jurisdiction over prison
12
officials in general or over Plaintiff’s litigation issues. Summers v. Earth Island Institute, 555
13
U.S. 488, 492-93 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The
14
Court’s jurisdiction is limited to the parties in this action and to the cognizable legal claims upon
15
which this action is proceeding. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at 969. The
16
Court cannot order prison staff to provide litigation supplies to Plaintiff.
17
To the extent Plaintiff’s motion seeks an extension of time to file his amended complaint,
18
Plaintiff has recently been granted a second extension of time, and therefore the request will be
19
denied as moot. Plaintiff’s amended complaint is currently due on or before November 20, 2017.
20
(ECF No. 43.)
21
22
Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for a preliminary
injunction (ECF No. 37) be DENIED without prejudice.
23
These Findings and Recommendations will be submitted to the United States District
24
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
25
fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
26
file written objections with the Court. The document should be captioned “Objections to
27
Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file
28
objections within the specified time may result in the waiver of the “right to challenge the
2
1
magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2
2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
3
4
5
IT IS SO ORDERED.
Dated:
/s/ Barbara
November 6, 2017
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?