McNeal v. Evert, et al

Filing 335

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 DENYING plaintiff's 320 motion for a court order. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON WAYNE McNEAL, 12 13 14 15 No. 2:05-cv-0441-GEB-EFB P Plaintiff, v. ORDER EVERT, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, has filed a motion for an order compelling prison officials to repair certain personal 19 property and replace other property. ECF No. 320. 20 Plaintiff’s request does not implicate the conduct of any defendant or involve the 21 allegations in this action and thus is not a proper request for an injunction under Fed. R. Civ. P. 22 65. Furthermore, even if properly presented as a request for an injunction, plaintiff has not 23 satisfied the standards for such an order. He has failed to demonstrate “that he is likely to 24 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 25 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 26 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. 27 Council, Inc., 555 U.S. 7 (2008)); see also Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 28 1130-34 (9th Cir. 2010). 1 1 Nor does plaintiff seek an order that is necessary to allow him to effectively litigate this 2 action (such as an order compelling officials to provide him with legal materials or law library 3 access). Rather, plaintiff seeks an order compelling non-parties to repair and/or replace personal 4 items of property (headphones, television, hot pot, shoes, antenna, etc.). He alleges that, by 5 marring or withholding his property, officials are “retaliating against plaintiff for his lawsuit in 6 the courts.” ECF No. 321 at 3. 7 If plaintiff believes that other, non-party officials are retaliating against him for his 8 lawsuit, his remedy is to challenge the retaliatory conduct through the administrative appeals 9 system at his institution of incarceration and, if appropriate, initiate a separate lawsuit against the 10 11 individuals whom plaintiff believes have retaliated against him. Accordingly, plaintiff’s December 12, 2017 motion for a court order (ECF No. 320) is 12 hereby DENIED. 13 DATED: January 9, 2018. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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