Consiglio v. Brown et al

Filing 11

ORDER ADOPTING 7 FINDINGS AND RECOMMENDATIONS and ORDER DENYING Plaintiff's Request for Preliminary Injunction signed by District Judge Anthony W. Ishii on 5/25/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAM CONSIGLIO, JR., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S REQUEST FOR PRELIMINARY INJUNCTION Plaintiff, 12 v. 13 14 Case No. 1:16-cv-01268-AWI-SAB (PC) EDMUND G. BROWN, et al., 15 (ECF Nos. 1, 7) Defendants. 16 17 Plaintiff Sam Consiglio, Jr. is a civil detainee proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 26, 2016, Plaintiff filed his complaint in this action. In his complaint, Plaintiff 21 requested a preliminary injunction to prevent the officials at the institution where he is being 22 civilly detained from enforcing a ban pursuant to 9 C.C.R. § 891 (“Section 891”) (which 23 prohibits non-LPS patients, such as sexually violent predators, from having any access to the 24 internet) and 9 C.C.R. § 4350 (“Section 4350”) (which prohibits all patients in the custody of 25 state hospitals from possessing any electronic devices with wireless capabilities, including but 26 not limited to cell phones, computers, PDAs, electronic gaming devices, and graphing calculators 27 with internet capabilities) during the pendency of this action. 28 /// 1 On April 10, 2017, the assigned Magistrate Judge issued a screening order finding that 1 2 Plaintiff’s complaint stated cognizable claims based on allegations that Sections 891 and 4350 3 amount to punishment under the Fourteenth Amendment, and granting him leave to amend his 4 other allegations. (ECF No. 8.) The Magistrate Judge also issued findings and recommendations 5 to deny Plaintiff’s request for a preliminary injunction, finding that although Plaintiff alleged 6 enough facts to plead a claim, he has not shown that he is likely to succeed on the merits of his 7 claim, that he is in immediate need of the relief he seeks, or that he is under a significant threat of 8 irreparable harm without a preliminary injunction. (ECF No. 7.) Further, he did not demonstrate 9 that the balance of equities tips in his favor, or that an injunction is in the public interest. (Id. at 10 2.) Plaintiff was directed to file his objections to those findings and recommendations within 11 fourteen days. That deadline has passed, and no objections have been filed.1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 12 13 Court has conducted a de novo review of Plaintiff’s request. The Court finds the findings and 14 recommendations to be supported by the record and by proper analysis. 15 Accordingly, it is HEREBY ORDERED that: 16 1. The findings and recommendations filed on April 10, 2017 (ECF No. 7) are 17 ADOPTED in full; and 2. 18 Plaintiff’s request for a preliminary injunction (ECF No. 1) is DENIED, without 19 prejudice. 20 21 IT IS SO ORDERED. 22 Dated: May 25, 2017 SENIOR DISTRICT JUDGE 23 24 25 26 1 Plaintiff was also directed to notify the Court whether he intended to proceed on his cognizable claims 27 or to file an amended complaint. (ECF No. 7.) Plaintiff has since notified the Court in writing that he elects to proceed only on the claims found cognizable. (ECF No. 9.) Separate findings and 28 recommendations from the Magistrate Judge are pending regarding that matter. (ECF No. 10.) 2

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