Corena v. Holland et al

Filing 73

FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's 70 Motion for Preliminary Injunction be Denied, without Prejudice to Plaintiff Filing a Separate Action Based on his Allegations and Seeking Injunctive Relief in that Case, signed by Magistrate Judge Erica P. Grosjean on 1/8/19. Referred to Judge O'Neill. 21-Day Objections Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-01025-LJO-EPG (PC)

JORGE CORENA,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR A PRELIMINARY
INJUNCTION BE DENIED, WITHOUT
PREJUDICE TO PLAINTIFF FILING A
SEPARATE ACTION BASED ON HIS
ALLEGATIONS AND SEEKING INJUNCTIVE
RELIEF IN THAT CASE

Plaintiff,
v.
RODRIGUEZ, et al.,

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Defendants.

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(ECF NO. 70)

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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Jorge Corena (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding on his Second

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Amended Complaint (ECF No. 14), on his claims against defendants Rodriguez, Cerveza, and

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Doe for excessive force in violation of the Eighth Amendment, against the Doe defendant for

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failure to protect in violation of the Eighth Amendment, and against defendants Rodriguez and

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Doe for retaliation in violation of the First Amendment. (ECF No. 26).

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On January 4, 2019, Plaintiff filed a motion for a preliminary injunction (“the Motion”).
(ECF No. 70).
For the reasons described below, the Court recommends denying the Motion.
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I.

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THE MOTION
Plaintiff alleges that he is being subjected to constant retaliation. Officer Tuzon retaliated

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against Plaintiff for reporting misconduct. Plaintiff was also targeted by Officer Mackey, while

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Lieutenant Frazier found Plaintiff guilty of disciplinary 115s that were frivolous and only given to

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Plaintiff in retaliation for report Officer Tuzon. Additionally, Plaintiff’s 602 appeal has been

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delayed for over thirty days without a response. Moreover, only four days after Plaintiff made his

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initial report, he was considered a program failure (which resulted in Plaintiff being denied access

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to the law library). Finally, Lieutenant Frazier called Plaintiff’s unit and told custody to write

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Plaintiff up.

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Lieutenant Frazier regularly retaliates against inmates, and has created a culture where
retaliation is acceptable.
II.

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LEGAL STANDARDS
A federal district court may issue emergency injunctive relief only if it has personal

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jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros.,

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Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party

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officially, and is required to take action in that capacity, only upon service of summons or other

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authority-asserting measure stating the time within which the party served must appear to

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defend.”). The court may not attempt to determine the rights of persons not before it. See, e.g.,

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Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d

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719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive

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relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under

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Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,”

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their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active

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concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). “When a plaintiff seeks injunctive

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relief based on claims not pled in the complaint, the court does not have the authority to issue an

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injunction.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir.

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2015).

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Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the
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Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is

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narrowly drawn, extends no further than necessary to correct the violation of the Federal Right,

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and is the least intrusive means necessary to correct the violation of the Federal Right.”
On the merits, “[a] plaintiff seeking a preliminary injunction must establish that he is

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likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

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public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that

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irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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III.

ANALYSIS
The Court will recommend that the Motion be denied. Plaintiff’s motion appears to be

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unrelated to this case. Plaintiff has alleged he is being retaliated against for reporting misconduct

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by Officer Tuzon, not because he is prosecuting in this case. Moreover, his allegations of

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retaliation appear to be against Officer Tuzon, Officer Mackey, and Lieutenant Frazier, none of

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whom are defendants in this case.

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Because Plaintiff appears to be basing his injunction request on claims that were not pled

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in the Second Complaint, and because his allegations are against correctional staff that are not

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defendants in this case, the Motion should be denied. This denial should be without prejudice to

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Plaintiff filing a separate action based on his allegations in the Motion and seeking injunctive

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relief in that case.

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IV.

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RECOMMENDATION
Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that

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Plaintiff’s motion for a preliminary injunction be DENIED, without prejudice to Plaintiff filing a

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separate action based on his allegations in the Motion and seeking injunctive relief in that case.

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These findings and recommendations are 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)(l). Within twenty-one

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(21) days after being served with these findings and recommendations, any party may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge's Findings and Recommendations.” Any reply to the objections shall be served and filed

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within seven days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 8, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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