Hayes v. Kernan et al

Filing 33

ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS to Deny Plaintiff's Motion for a Preliminary Injunction; ORDER Denying Request for Reconsideration of the Magistrate Judge's Screening Order signed by District Judge Anthony W. Ishii on 06/06/2017. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ALBERT HAYES, Plaintiff, 12 13 14 15 16 17 v. SCOTT KERNAN, et al., Defendants. CASE NO. 1:16-cv-01235-AWI-MJS (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION (ECF No. 16) ORDER DENYING REQUEST FOR RECONSIDERATION OF THE MAGISTRATE JUDGE’S SCREENING ORDER 18 19 (ECF No. 19) 20 Plaintiff is a prisoner proceeding pro se in this civil rights action brought pursuant 21 to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 22 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 Plaintiff initiated this action on August 22, 2016. (ECF No. 1.) In a screening 24 order issued on December 19, 2016, the Magistrate Judge dismissed Plaintiff’s first 25 amended complaint for failure to state a claim, but granted leave to amend. (ECF No. 26 16.) The Magistrate Judge also issued findings and recommendations to deny Plaintiff’s 27 request for a preliminary junction directing prison officials to assist Plaintiff with his 28 1 grievances. (Id.) Plaintiff was directed to file his objections within fourteen days. 2 Plaintiff’s objections were filed on January 12, 2017. (ECF No. 19.) Therein, Plaintiff 3 objects not only to the Magistrate Judge’s refusal to enter a preliminary injunction, but 4 also to the Magistrate Judge’s finding that Plaintiff’s complaint failed to state a claim. 5 Plaintiff’s objections regarding the Magistrate Jude’s screening order are more 6 appropriately construed as a motion for reconsideration under Rule 72(a) of the Federal 7 Rules of Civil Procedure. 8 I. Motion for Reconsideration 9 A Magistrate Judge’s screening order is not a final order dispositive of a claim or 10 defense. Reid v. United States, No. 1:14-cv-01163-LJO-MJS, 2015 WL 2235127, at *1 11 (E.D. Cal. May 12, 2015). Under Rule 72(a), a party may object to any nondispositive 12 orders entered by a magistrate judge. Rule 72(a) then requires the district judge to 13 “consider timely objections and modify or set aside any part of the order that is clearly 14 erroneous or is contrary to law.” Likewise, Local Rule 303(c) states: “A party seeking 15 reconsideration of the Magistrate judge's ruling shall file a request for reconsideration by 16 a Judge and serve the Magistrate judge and all parties. Such request shall specifically 17 designate the ruling, or part thereof, objected to and the basis for that objection.” 18 “A motion for reconsideration should not be granted, absent highly unusual 19 circumstances, unless the . . . court is presented with newly discovered evidence, 20 committed clear error, or if there is an intervening change in the controlling law,” Marlyn 21 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). 22 “A motion for reconsideration may not be used to raise arguments or present evidence 23 for the first time when they could reasonably have been raised in earlier litigation.” Id. 24 Furthermore, “‘[a] party seeking reconsideration must show more than a disagreement 25 with the Court’s decision, and ‘recapitulation . . .’” of that which was already considered 26 by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 27 1111, 1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. 28 Supp. 834, 856 (D. N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking 2 1 reconsideration show that “new or different facts or circumstances are claimed to exist 2 which did not exist or were not shown upon such prior motion, or what other grounds 3 exist for the motion . . . .” 4 Plaintiff’s filing is difficult to understand. He essentially argues that the factual 5 allegations contained within the first amended complaint are sufficient to state a cause of 6 action under the Due Process Clause, the Americans with Disabilities Act, and the Equal 7 Protection Clause. He points to no new or different facts or circumstances to support his 8 motion, other than to point out that he “inadvertently” wrote in his complaint that he sued 9 each Defendant in his individual capacity, when he in fact means to sue them in their 10 official capacities only. 11 Plaintiff’s first amended complaint was properly dismissed for failure to link any 12 named Defendant to an act or omission that resulted in the violation of Plaintiff’s rights. 13 The Magistrate Judge also advised Plaintiff that any claims he wished to make against 14 Defendants in their official capacities must allege the existence of a policy or practice 15 that led to the violation of Plaintiff’s rights. To the extent Plaintiff wishes to clarify his 16 claims, the Magistrate Judge granted him an opportunity to file an amended complaint. 17 Plaintiff should heed this directive. Plaintiff’s motion for reconsideration will be denied. 18 II. Findings and Recommendation to Deny Preliminary Injunctive Relief 19 Plaintiff maintains that he has been and continues to be irreparably harmed by the 20 conduct of the named Defendants, in that he suffers stress and anxiety, which affects his 21 mental and physical well-being. Plaintiff argues that at the very least, he should be 22 granted an opportunity to amend his request for injunctive relief to set forth more facts in 23 support. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 the Court has conducted a de novo review of Plaintiff’s request. The Court finds the 26 findings and recommendations to be supported by the record and by proper analysis. 27 Plaintiff has made no showing that he is entitled to injunctive relief at this time; indeed, 28 as Plaintiff has not yet stated a cognizable claim, the Court lacks jurisdiction to direct the 3 1 actions of Defendants. Zepeda v. United States Immigration Service, 753 F.2d 719, 727 2 (9th Cir. 1985). The Court will deny his request, albeit without prejudice. If new 3 circumstances arise in the future that warrant consideration, Plaintiff may renew his 4 request at that time. 5 6 7 8 9 10 11 Accordingly, it is HEREBY ORDERED that: 1. The findings and recommendations filed on December 19, 2016 (ECF No. 16) is adopted in full; 2. Plaintiff’s motion for a preliminary injunction (ECF No. 9) is DENIED without prejudice; and 3. Plaintiff’s motion for reconsideration of the Magistrate Judge’s screening order (ECF No. 19) is DENIED. 12 13 14 IT IS SO ORDERED. Dated: June 6, 2017 SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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