Valadez v. California Department of Corrections and Rehabilitation

Filing 20

FINDINGS and RECOMMENDATIONS recommending denial of 17 MOTION for Injunctive Relief signed by Magistrate Judge Barbara A. McAuliffe on 11/6/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R's due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL VALADEZ, 12 13 14 15 16 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Case No. 1:17-cv-00551-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION FOR INJUNCTIVE RELIEF (ECF No. 17) FOURTEEN (14) DAY DEADLINE Defendant. 17 18 19 20 Plaintiff Daniel Valadez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. On April 19, 2017, Plaintiff filed a motion for injunctive relief, requesting that the Court 21 issue an order to the California Department of Corrections and Rehabilitation to immediately 22 allow Plaintiff family visits overnight. (ECF No. 3.) The Court denied the motion, finding that 23 Plaintiff had not met the requirements for injunctive relief, and that the Court lacked jurisdiction 24 over the defendant. (ECF Nos. 12, 13.) 25 On October 6, 2017, the Court dismissed the complaint for failure to state a cognizable 26 claim and granted leave to amend within thirty days. (ECF No. 14.) Plaintiff filed a first 27 amended complaint and a renewed motion for injunctive relief on October 23, 2017. (ECF Nos. 28 17, 18.) Plaintiff seeks an order “taking away the defendant’s capabilities of denying plaintiff 1 1 family visiting when or if plaintiff chooses to pursue family visiting like the other inmates can 2 get, due to the law of the defendant violates plaintiff’s civil rights as it stands currently.” (ECF 3 No. 17.) 4 As Plaintiff has been informed, “[a] preliminary injunction is an extraordinary remedy 5 never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation 6 omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 7 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 8 the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 9 (citations omitted). 10 Plaintiff’s motion again fails to establish that he is likely to succeed on the merits, that he 11 will suffer irreparable harm in the absence of an injunction, that the balance of equities tips in his 12 favor, or that an injunction is in the public interest. Indeed, on the basis of the motion, the Court 13 cannot find that Plaintiff will suffer any, much less irreparable, harm if the relief is not granted, as 14 Plaintiff states that the injunction would apply “when or if” he pursues family visitation. (ECF 15 No. 17.) 16 Moreover, the Court has not screened Plaintiff’s first amended complaint to determine 17 whether it states a cognizable claim, no defendant has been ordered served, and no defendant has 18 yet made an appearance. Thus, the Court remains without personal jurisdiction over the 19 defendant, and cannot issue an order requiring it to take any action. Zenith Radio Corp. v. 20 Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); SEC v. Ross, 504 F.3d 1130, 1138–39 (9th 21 Cir. 2007). 22 23 Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for injunctive relief (ECF No. 17) be DENIED without prejudice. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 26 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 27 file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file 2 1 objections within the specified time may result in the waiver of the “right to challenge the 2 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: /s/ Barbara November 6, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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