(PC) Hammler v. Kernan et al

Filing 31

ORDER ADOPTING 15 Findings and Recommendations and DENYING Plaintiff's 10 Motion for Injunctive Relief signed by District Judge Dale A. Drozd on 10/8/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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No. 1:19-cv-00497-DAD-SAB (PC)

Plaintiff,
v.
SCOTT KERNAN, et al.,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S MOTION FOR INJUNCTIVE
RELIEF

Defendants.
(Doc. No. 15)

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Plaintiff Allen Hammler is a state prisoner appearing pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 24, 2019 the assigned magistrate judge issued findings and recommendations,

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recommending that plaintiff’s motion for preliminary injunction (Doc. No. 10) be denied. (Doc.

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No. 15.) Specifically, the magistrate judge found that: (1) because plaintiff’s complaint had yet

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to be screened, no defendant has been served and the court therefore lacks jurisdiction over the

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persons plaintiff seeks to enjoin; and (2) plaintiff is unlikely to succeed on the merits of his

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claims; and (3) plaintiff has not established that he is likely to suffer irreparable harm in the

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absence of the granting of preliminary relief. (Id. at 2–3.) The findings and recommendations

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were served on plaintiff and contained notice that any objections thereto were to be filed within
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fourteen days (14) after service. (Id. at 7.) On May 13, 2019, plaintiff untimely filed his

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objections. (Doc. No. 19.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s

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objections, the court finds the findings and recommendations to be supported by the record and

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by proper analysis.
Plaintiff’s primary objection is that it does not make sense to deny him preliminary

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injunctive relief on the basis that no defendant has yet been served because to do so essentially

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takes the position “that it’s okay that Plaintiff is being treated in an unconstitutional manner,

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because ‘hey, no service has been effected.’” (Id. at 1–2.) Plaintiff’s secondary objection is that

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he is likely to succeed on the merits of his due process claim because he has alleged that he has a

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written agreement signed by a prison official guaranteeing him specific housing and that

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agreement was not honored at his current place of confinement. (Id. at 2–3.) Neither of these

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objections is persuasive. First, plaintiff does not dispute the magistrate judge’s legal finding that

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the court “may issue a preliminary injunction only on notice to the adverse party,” Fed. R. Civ. P.

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65(a)(1), and that therefore, “[i]n the absence of service of process (or waiver of service by the

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defendant), a court ordinarily may not exercise power over a party the complaint names as

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defendant,” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Second, in

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his objections plaintiff merely contends in conclusory fashion that he can succeed on the merits

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of his claims but fails to present any legal argument in support of that bare assertion. Indeed,

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since the pending findings and recommendations were issued, the assigned magistrate judge has

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screened plaintiff’s original and first amended complaints (see Doc. Nos. 18, 29) and found that

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plaintiff has failed to state a cognizable claim.1 The court has reviewed those screening orders

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and agrees with the analysis set forth therein. Accordingly, the court also concludes that plaintiff

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has failed to establish that he is likely to succeed on the merits of his claims or to otherwise meet

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the standard for establishing that he is entitled to preliminary relief.

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Plaintiff has filed a second amended complaint that has not yet been screened by the magistrate
judge. (See Doc. No. 30.)
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Accordingly,

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1.

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Thee April 24, 2019 findings and recommendations (Doc. No. 15) are adopted in
full; and

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Plaintiff’s motion for preliminary injunction (Doc. No. 10) is denied.

IT IS SO ORDERED.
Dated:

October 8, 2019
UNITED STATES DISTRICT JUDGE

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