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)

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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.,
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

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

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on June

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27, 2016. (ECF No. 1.)

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On June 22, 2017, the Court issued an order dismissing Plaintiff’s second amended

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complaint and granting leave to file an amended complaint within thirty days. (ECF No. 33.) On

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August 3, 2017, Plaintiff filed the instant “Motion for Court Order.” (ECF No. 37.) Plaintiff

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filed a supplement in support of his motion on September 15, 2017. (ECF No. 41.) Plaintiff

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requests a court order granting access to his typewriter, legal property, and access to the law

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library, due to an injury to his right hand that occurred on July 26, 2017. The Court construes this

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filing as a motion for preliminary injunction.

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

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a

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preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction
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may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation

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omitted).

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“[A] court has no power to adjudicate a personal claim or obligation unless it has

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jurisdiction over the person of the defendant.” Zenith Radio Corp. v. Hazeltine Research, Inc.,

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395 U.S. 100, 110 (1969); SEC v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). In this case,

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Plaintiff has not yet filed an amended complaint, the Court has not screened Plaintiff’s amended

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complaint to determine whether it states a cognizable claim, no defendant has been ordered

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served, and no defendant has yet made an appearance. At this juncture, the Court lacks personal

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jurisdiction over the defendant and it cannot issue an order requiring it to take any action. Zenith

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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

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officials in general or over Plaintiff’s litigation issues. Summers v. Earth Island Institute, 555

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U.S. 488, 492-93 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The

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Court’s jurisdiction is limited to the parties in this action and to the cognizable legal claims upon

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which this action is proceeding. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at 969. The

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Court cannot order prison staff to provide litigation supplies to Plaintiff.

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To the extent Plaintiff’s motion seeks an extension of time to file his amended complaint,

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Plaintiff has recently been granted a second extension of time, and therefore the request will be

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denied as moot. Plaintiff’s amended complaint is currently due on or before November 20, 2017.

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(ECF No. 43.)

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Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for a preliminary
injunction (ECF No. 37) be DENIED without prejudice.

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

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

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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