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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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No. 2:05-cv-0441-GEB-EFB P

Plaintiff,
v.

ORDER

EVERT, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983, has filed a motion for an order compelling prison officials to repair certain personal

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property and replace other property. ECF No. 320.

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Plaintiff’s request does not implicate the conduct of any defendant or involve the

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allegations in this action and thus is not a proper request for an injunction under Fed. R. Civ. P.

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65. Furthermore, even if properly presented as a request for an injunction, plaintiff has not

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satisfied the standards for such an order. He has failed to demonstrate “that he is likely to

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

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

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7 (2008)); see also Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

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1130-34 (9th Cir. 2010).
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Nor does plaintiff seek an order that is necessary to allow him to effectively litigate this

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action (such as an order compelling officials to provide him with legal materials or law library

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access). Rather, plaintiff seeks an order compelling non-parties to repair and/or replace personal

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items of property (headphones, television, hot pot, shoes, antenna, etc.). He alleges that, by

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marring or withholding his property, officials are “retaliating against plaintiff for his lawsuit in

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the courts.” ECF No. 321 at 3.

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If plaintiff believes that other, non-party officials are retaliating against him for his

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lawsuit, his remedy is to challenge the retaliatory conduct through the administrative appeals

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system at his institution of incarceration and, if appropriate, initiate a separate lawsuit against the

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individuals whom plaintiff believes have retaliated against him.
Accordingly, plaintiff’s December 12, 2017 motion for a court order (ECF No. 320) is

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hereby DENIED.

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DATED: January 9, 2018.

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