Turner v. Administrative Security Personell, et al.

Filing 38

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for a Preliminary Injunction must be Denied re 26 ; referred to Judge DROZD,signed by Magistrate Judge Stanley A. Boone on 09/21/17. Objections to F&R due by 10/26/2017 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEMAREALE TURNER,

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Plaintiff,
v.
ADMINISTRATIVE SECURITY
PERSONELL, et al.,
Defendants.

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Case No.: 1:16-cv-01643-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION BE DENIED
[ECF No. 26]

Plaintiff Edwin Garcia is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion for a preliminary injunction, filed August 17,

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2017. Defendants filed an opposition on September 6, 2017, and Plaintiff filed a reply on September

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20, 2017.

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I.

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DISCUSSION

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A preliminary injunction should not issue unless necessary to prevent threatened injury that

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would impair the court’s ability to grant effective relief in a pending action. “A preliminary injunction

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… is not a preliminary adjudication on the merits but rather a device for preserving the status quo and

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preventing the irreparable loss of right before judgment.” Sierra On-Line, Inc. v. Phoenix Software,
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Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A preliminary injunction represents the exercise of a far

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reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. V. Tapeprinter,

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Inc., 326 F.2d 141, 143 (9th Cir. 1964). “The proper legal standard for preliminary injunctive relief

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requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer

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

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that an injunction is in the public interest.’” Stormans, Inc., v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In cases brought by

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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly drawn,

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extend no further than necessary to correct the harm the court finds requires preliminary relief, and be

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the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).
This action is proceeding against Defendants Robles and Hernandez for excessive force in

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violation of the Eighth Amendment. In the instant motion, Plaintiff claims that on September 1, 2016,

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Defendant Hernandez charged him with a disciplinary violation for conspiring to distribute a

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controlled substance, despite the fact that Plaintiff had already been charged with a disciplinary

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violation eight months prior to conduct arising out of the same underlying incident, which was

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dismissed. Plaintiff’s motion for injunctive relief must be denied for the following reasons.
First, Plaintiff has not and cannot demonstrate that the issuance of any disciplinary actions

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were in retaliation for the filing of the instant action because they predate the filing of this action.

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(ECF No. 1.) Second, because Plaintiff is no longer housed at the institution where Defendant

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Hernandez is employed and where the incident took place, any claim for injunctive relief is moot. See

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Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975) (noting that a prisoner’s transfer to another prison

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may render a request for injunctive relief moot absent evidence of an expectation of moving back).1 In

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addition, Plaintiff’s request for a “preliminary injunction to stop all retaliation” is too broad. See Price

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v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (explaining that a preliminary injunction

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must be narrowly tailored to affect the persons over whom it pertains, and must remedy identifiable

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harms, rather than all possible breaches of the law). Lastly, Plaintiff’s claim that Defendant

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The allegations at issue in this action took place while Plaintiff was housed at Kern Valley State Prison, whereas Plaintiff
is now housed at Salinas Valley State Prison.

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Hernandez issued disciplinary charges against him based on a retaliatory motive is a separate and

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distinct claim from the excessive force claim in this action and must be brought by way of filing a

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separate action. Thus, Plaintiff cannot seek relief for such retaliation claim by way of filing a

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preliminary injunction in this action. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810

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F.3d 631, 636 (9th Cir. 2015) (holding “that there must be a relationship between the injury claimed in

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the motion for injunctive relief and the claims set forth in the complaint itself.”) (citing Devose v.

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Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (denying a prisoner’s motion for injunctive relief

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regarding alleged retaliation, because the alleged retaliation was separate and distinct from the

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underlying conduct challenged in the § 1983 action].) Accordingly, Plaintiff’s motion for a

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preliminary injunction must 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, the parties 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.” The parties are 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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September 21, 2017
UNITED STATES MAGISTRATE JUDGE

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