Toscano v. Davey et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 3/17/2017 recommending that 11 Motion regarding Transfer be DENIED. Referred to Judge Dale A. Drozd; Objections to F&R due by 4/24/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN K. TOSCANO,
Plaintiff,

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v.
DAVE DAVEY, et al.,
Defendants.

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Case No.: 1:16-cv-01369-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION
REGARDING TRANSFER
[ECF No. 11]

Plaintiff Benjamin K. Toscano is appearing pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction; therefore, this action

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was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On October 24, 2016, Plaintiff filed a motion regarding transfer. (ECF No. 11.) The Court
construes the motion as a motion for a preliminary injunction.

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I.

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DISCUSSION

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In his motion, Plaintiff states that he was informed by a medical psychiatric technician that he

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was transferring, which was a surprise to him. Plaintiff alleges that the transfer is suspicious and he

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believes it is being done to set him up for an assault or a murder. He requests that the transfer be

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investigated. (ECF No. 11)

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Plaintiff next filed notices of change of address, on October 27, 2016 and November 14, 2016

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respectively, indicating he was transferred from CSP-Corcoran to Pelican Bay State Prison, where he

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is currently housed. (ECF Nos. 12, 13.)
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The purpose of a preliminary injunction is to preserve the status quo if the balance of equities

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so heavily favors the moving party that justice requires the court to intervene to secure the positions

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until the merits of the action are ultimately determined. Univ. of Texas v. Camenisch, 451 U.S. 390,

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395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). “A plaintiff seeking a preliminary injunction must

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

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

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the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365,

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374, 172 L. Ed. 2d 249 (2008). “[A] preliminary injunction is an extraordinary and drastic remedy,

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one that should not be granted unless the movant, by a clear showing, carries the burden of

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persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997)

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(quotations and citations omitted) (emphasis in original).

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Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court must

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have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.

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Ct. 1660, 75 L. Ed. 2d 675 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of

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Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). If the court does

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not have an actual case or controversy before it, it has no power to hear the matter in question. Lyons,

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461 U.S. at 102. Thus, “[a] federal court may issue an injunction [only] if it has personal jurisdiction

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over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the

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rights of persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727

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(9th Cir. 1985).

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The pendency of this action does not give the Court jurisdiction over prison officials in

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general. Summers v. Earth Island Institute, 555 U.S. 488, 491–93, 129 S. Ct. 1142, 173 L. Ed. 2d 1

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(2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is

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limited to the parties in this action and to the viable legal claims upon which this action is proceeding.

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Summers, 555 U.S. at 491–93; Mayfield, 599 F.3d at 969.

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Plaintiff has not met the requirements for the injunctive relief he seeks in this motion. In this

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matter, Plaintiff’s complaint has not yet been screened, and the Court has not yet determined whether

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he has stated any cognizable claims. No defendant has been ordered served, and no defendant has yet
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made an appearance. Thus, the Court at this time lacks personal jurisdiction over any prison officials

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at CSP-Corcoran. It is not clear from Plaintiff’s motion for preliminary injunctive relief that the same

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officials he has named in his complaint would even be responsible for the transfer he is challenging.

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Further, now that Plaintiff is housed at Pelican Bay State Prison, any claim for injunctive relief

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against the officials at CSP-Corcoran, where he was formerly housed, is now moot, as those officials

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are no longer involved in determining his housing situation. See Holt v. Stockman, 2012 WL 259938,

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*6 (E.D. Cal. Jan. 25, 2012) (a prisoner’s claim for injunctive relief is rendered moot when he is

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transferred from the institution whose employees he seeks to enjoin); see also Andrews v. Cervantes,

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493 F.3d 1047, 1053 n.5 (9th Cir. 2007).

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To the extent Plaintiff believes he is in danger, he has other avenues of relief available to him,

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which may include a petition for writ of habeas corpus in state court. E.g., In re Davis, 25 Cal.3d 384,

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387 (Cal. 1979) (writ of habeas corpus may be sought to obtain declaration and enforcement of a

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prisoner’s rights in confinement). This particular action cannot be used by Plaintiff to obtain the relief

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he seeks. The seriousness of Plaintiff’s allegations concerning potential harm cannot and do not

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overcome the jurisdictional bar. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S.

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Ct. 1003 (1998). (“[The] triad of injury in fact, causation, and redressability constitutes the core of

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Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the

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burden of establishing its existence.”)

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II.

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RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion regarding
transfer, filed October 24, 2016 (ECF No. 11), be denied.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with this Findings and Recommendation, Plaintiff may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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

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IT IS SO ORDERED.

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Dated:

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March 17, 2017
UNITED STATES MAGISTRATE JUDGE

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