Bennett v. Asuncion, et al.

Filing 25

ORDER Directing Clerk of Court to Assign a District Judge; FINDINGS and RECOMMENDATIONS recommending that 22 Plaintiff's Motion for Injunctive Relief be DENIED re 24 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Michae l J. Seng on 12/4/2017. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Michael J. Seng. The new case number is 1:16-cv-01749-AWI-MJS (PC). Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID BENNETT,

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Plaintiff,

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CASE No. 1:16-cv-1749-MJS (PC)
ORDER DIRECTING THE CLERK OF
COURT TO ASSIGN A DISTRICT JUDGE;

v.
AND
DEBBIE ASUNCION, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S REQUEST FOR
AN ORDER TO SHOW CAUSE FOR
INJUNCTION AND TEMPORARY
RESTRAINING ORDER
(ECF NO. 22)

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FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a

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magistrate judge, but no Defendants have yet been served or appeared in this action. 1 In

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fact, Plaintiff’s First Amended Complaint is still pending screening. (ECF No. 24.)

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On April 24, 2017, the undersigned issued findings and recommendations on a previously-filed motion for
injunctive relief. (ECF No. 13.) After Plaintiff filed his consent to the jurisdiction of a magistrate judge (ECF
No. 16), this case was reassigned to the undersigned pursuant to 28 U.S.C. § 636(c). (See ECF No. 18.)
Notwithstanding Plaintiff’s consent, the undersigned will order the Clerk of Court to reassign this case to a
district judge to rule on the pending motion for injunctive relief. See Williams v. King, 875 F.3d 500 (9th Cir.
Nov. 9, 2017).

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Pending is a request filed by Plaintiff titled “Order to Show Cause for Injunction

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and Temporary Restraining Order with Separate Motions.” (ECF No. 22.) Therein,

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Plaintiff alleges he has been subjected to retaliation for filing this suit, and he seeks an

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order directing Defendant(s) to provide Enhanced Outpatient Program (“EOP”) inmates

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the same level of yard time as provided to non-EOP inmates.

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I.

Legal Standards

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The purpose of a temporary restraining order is to preserve the status quo before

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a preliminary injunction hearing may be held; its provisional remedial nature is designed

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merely to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v.

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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil

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Procedure 65, a temporary restraining order may be granted only if “specific facts in an

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affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or

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damage will result to the movant before the adverse party can be heard in opposition.”

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Fed. R. Civ. P. 65(b)(1)(A).

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The standard for issuing a temporary restraining order is identical to the standard

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for a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co.,

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Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary

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and drastic remedy, never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-90

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(2008) (citations omitted). A plaintiff seeking a preliminary injunction must establish that

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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

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injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20

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(2008). A preliminary injunction may issue where the plaintiff demonstrates the existence

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of serious questions going to the merits and the hardship balance tips sharply toward the

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plaintiff, assuming the other two elements of the Winter test are also met. Alliance for the

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either

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formulation of the principles, preliminary injunctive relief should be denied if the

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probability of success on the merits is low. See Johnson v. Cal. State Bd. of
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Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (even if the balance of hardships tips

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decidedly in favor of the moving party, it must be shown as an irreducible minimum that

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there is a fair chance of success on the merits).

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In cases brought by prisoners involving conditions of confinement, any preliminary

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injunction must be narrowly drawn, extend no further than necessary to correct the harm

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the court finds requires preliminary relief, and be the least intrusive means necessary to

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correct the harm. 18 U.S.C. § 3626(a)(2).

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II.

Discussion
On January 9, 2017, the Court screened Plaintiff’s complaint and dismissed it with

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leave to amend in light of Plaintiff’s admission that he did not exhaust his administrative

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remedies prior to filing suit. Plaintiff recently filed a First Amended Complaint which has

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not yet been screened. The Court therefore cannot opine that Plaintiff is likely to

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succeed on the merits of his claims.

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Furthermore, no Defendants have yet appeared in this action, and the Court does

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not have jurisdiction to order injunctive relief which would require directing individuals not

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before the Court to take action. Zepeda v. United States Immigration & Naturalization

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Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has

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personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may

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not attempt to determine the rights of persons not before the court.”).

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III.

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Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that a district judge be re-

assigned to this case; and
IT IS HEREBY RECOMMENDED that Plaintiff’s motion for injunctive relief (ECF
No. 22) be DENIED.
The findings and recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendations, the

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parties may file written objections with the Court. The document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” A party may

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respond to another party’s objections by filing a response within fourteen (14) days after

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being served with a copy of that party’s objections. The parties are advised that failure to

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

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 4, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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