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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL VALADEZ,

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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.

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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

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issue an order to the California Department of Corrections and Rehabilitation to immediately

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allow Plaintiff family visits overnight. (ECF No. 3.) The Court denied the motion, finding that

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Plaintiff had not met the requirements for injunctive relief, and that the Court lacked jurisdiction

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over the defendant. (ECF Nos. 12, 13.)

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On October 6, 2017, the Court dismissed the complaint for failure to state a cognizable

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claim and granted leave to amend within thirty days. (ECF No. 14.) Plaintiff filed a first

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amended complaint and a renewed motion for injunctive relief on October 23, 2017. (ECF Nos.

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17, 18.) Plaintiff seeks an order “taking away the defendant’s capabilities of denying plaintiff
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family visiting when or if plaintiff chooses to pursue family visiting like the other inmates can

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get, due to the law of the defendant violates plaintiff’s civil rights as it stands currently.” (ECF

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No. 17.)

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As Plaintiff has been informed, “[a] preliminary injunction is an extraordinary remedy

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never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation

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omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20

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(citations omitted).

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Plaintiff’s motion again fails to establish that he is likely to succeed on the merits, that he

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will suffer irreparable harm in the absence of an injunction, that the balance of equities tips in his

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favor, or that an injunction is in the public interest. Indeed, on the basis of the motion, the Court

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cannot find that Plaintiff will suffer any, much less irreparable, harm if the relief is not granted, as

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Plaintiff states that the injunction would apply “when or if” he pursues family visitation. (ECF

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No. 17.)

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Moreover, the Court has not screened Plaintiff’s first amended complaint to determine

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whether it states a cognizable claim, no defendant has been ordered served, and no defendant has

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yet made an appearance. Thus, the Court remains without personal jurisdiction over the

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defendant, and cannot issue an order requiring it to take any action. Zenith Radio Corp. v.

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Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); SEC v. Ross, 504 F.3d 1130, 1138–39 (9th

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Cir. 2007).

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Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s motion for injunctive
relief (ECF No. 17) be DENIED without prejudice.

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These 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)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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