Lear v. Manasrah

Filing 11

ORDER directing Clerk to assign District Judge; FINDINGS and RECOMMENDATIONS to deny REQUEST for TEMPORARY RESTRAINING ORDER and PRELIMINARY INJUNCTION 7 , 8 signed by Magistrate Judge Michael J. Seng on 2/28/2017. Case assigned to District Judge Dale A. Drozd. The new case number is 1:17-cv-00071-DAD-MJS-(PC). Rreferred to Judge Dale A. Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RODERICK WILLIAM LEAR, 11 12 13 14 15 16 17 Plaintiff, CASE NO. 1:17-cv-00071-MJS (PC) ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE v. A. MANASRAH, Defendant. FINDINGS AND RECOMMENDATION TO DENY REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF Nos. 7, 8) FOURTEEN (14) DAY OBJECTION DEADLINE 18 19 20 21 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 22 rights action brought pursuant to 42 U.S.C. § 1983. He has not responded to the Court’s 23 order requiring him to consent to or decline Magistrate Judge jurisdiction. (ECF No. 4). 24 Accordingly, the Clerk’s Office is HEREBY DIRECTED to randomly assign this matter to 25 a district judge pursuant to Local Rule 120(e). 26 Before the Court is Plaintiff’s January 30, 2017 motion for a temporary restraining 27 order and a preliminary injunction. (ECF No. 7.) Also before the Court is Plaintiff’s 28 February 13, 2017 motion seeking to inform the Court of additional information in support 1 of his request. (ECF No. 8.) Plaintiff’s requested relief is unclear, but he appears to seek 2 transfer to another prison. 3 I. Legal Standard 4 The purpose of a temporary restraining order is to preserve the status quo before 5 a preliminary injunction hearing may be held; its provisional remedial nature is designed 6 merely to prevent irreparable loss of rights prior to judgment. Sierra On-Line, Inc. v. 7 Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Under Federal Rule of Civil 8 Procedure 65, a temporary restraining order may be granted only if “specific facts in an 9 affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or 10 damage will result to the movant before the adverse party can be heard in opposition.” 11 Fed. R. Civ. P. 65(b)(1)(A). 12 The standard for issuing a temporary restraining order is identical to the standard 13 for a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 14 Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an extraordinary 15 and drastic remedy, never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-90 16 (2008) (citations omitted). A plaintiff seeking a preliminary injunction must establish that 17 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 18 absence of preliminary relief, that the balance of equities tips in his favor, and that an 19 injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 20 (2008). A preliminary injunction may issue where the plaintiff demonstrates the existence 21 of serious questions going to the merits and the hardship balance tips sharply toward the 22 plaintiff, assuming the other two elements of the Winter test are also met. Alliance for the 23 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under either 24 formulation of the principles, preliminary injunctive relief should be denied if the 25 probability of success on the merits is low. See Johnson v. Cal. State Bd. of 26 Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (even if the balance of hardships tips 27 28 2 1 decidedly in favor of the moving party, it must be shown as an irreducible minimum that 2 there is a fair chance of success on the merits). 3 In cases brought by prisoners involving conditions of confinement, any preliminary 4 injunction must be narrowly drawn, extend no further than necessary to correct the harm 5 the court finds requires preliminary relief, and be the least intrusive means necessary to 6 correct the harm. 18 U.S.C. § 3626(a)(2). 7 II. Discussion 8 On February 15, 2017, the Court severed Plaintiff’s claims against Defendants 9 Avila, Christensen, and Lewis that arose at High Desert State Prison (where Plaintiff also 10 is presently housed), and transferred those claims to the Sacramento Division of the 11 Eastern District of California. (ECF No. 9.) Plaintiff’s motions for a temporary restraining 12 order and preliminary injunction also were filed in the severed action. See Lear v. Avila, 13 No. 2:17-cv-326-EFB. Plaintiff’s claim against Defendant Manasrah was retained in this 14 Court. 15 Also on February 15, 2017, the Court screened Plaintiff’s complaint, concluded 16 that the claim against Defendant Manasrah was not cognizable, and dismissed it with 17 leave to amend. (ECF No. 10.) 18 At this stage of the proceedings, Plaintiff’s request for injunctive relief, to the 19 extent it pertains to Defendant Manasrah, appears to be moot. Plaintiff is no longer in 20 Defendant’s custody or housed at Defendant’s institution. Absent facts to suggest that 21 Plaintiff will be transferred back to Defendant’s custody, any requests for injunctive relief 22 as to Manasrah appear to be moot. See Preiser v. Newkirk, 422 U.S. 395, 402-03 23 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991); see also Andrews v. 24 Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). Furthermore, the Court does not 25 have jurisdiction to order injunctive relief which would require directing parties not before 26 the Court, such as Plaintiff’s current custodian, to take action. Zepeda v. United States 27 Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court 28 3 1 may issue an injunction if it has personal jurisdiction over the parties and subject matter 2 jurisdiction over the claim; it may not attempt to determine the rights of persons not 3 before the court.”). 4 III. Conclusion and Order 5 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s request 6 for a temporary restraining order and preliminary injunction be DENIED without prejudice 7 to consideration of same in Plaintiff’s severed action, No. 2:17-cv-00326-EFB. 8 These findings and recommendations will be submitted to the United States 9 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 10 § 636(b)(1). Within fourteen (14) days after being served with the findings and 11 recommendations, Plaintiff may file written objections with the Court. The document 12 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 13 Plaintiff is advised that failure to file objections within the specified time may result in the 14 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 15 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. Dated: February 28, 2017 /s/ 19 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4

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