Gipbsin v. Deforest, Goni, Prater, Shelton and Stone

Filing 214

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/14/12 recommending that plaintiff's motion for a preliminary injunction 209 and 212 be denied. MOTIONS 209 and 212 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,
Plaintiff,

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vs.
SCOTT KERNAN, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
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No. 2:07-cv-0157 MCE EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This action proceeds on plaintiff’s Eighth Amendment excessive force

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claim against defendants Deforest, Goni, Prater, Shelton, and Stone. Trial is set for November

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26, 2012. Dckt. No. 204. Plaintiff seeks the issuance of a preliminary injunction mandating that

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during trial, he be allowed to retain his legal papers at all times, and be allowed to shower and

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shave daily. He also states that his mail is not being processed properly, which is interfering

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with his efforts “for the self-publication of his first book,” and requests an explanation. See

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Dckt. Nos. 209, 212. For the reasons stated below, plaintiff’s motion for a preliminary

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injunction must be denied.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that
would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.
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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter,

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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a

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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth

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Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions--that

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is, balancing the elements of the preliminary injunction test, so that a stronger showing of one

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element may offset a weaker showing of another--survives Winter and continues to be valid.

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Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words,

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‘serious questions going to the merits,’ and a hardship balance that tips sharply toward the

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plaintiff can support issuance of an injunction, assuming the other two elements of the Winter

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test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary

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injunction “must be narrowly drawn, extend no further than necessary to correct the harm the

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court finds requires preliminary relief, and be the least intrusive means necessary to correct the

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harm.” 18 U.S.C. § 3626(a)(2).

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Plaintiff requests that the court order non-parties to act, based on plaintiff’s mere

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speculation that at trial, he may not have adequate access to his legal materials or the ability to

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shower and shave on a daily basis. He also requests an explanation from non-parties regarding

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the handling of his legal mail. However, mere “[s]peculative injury does not constitute

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irreparable injury to warrant granting a preliminary injunction.” Caribbean Marine Servs. Co.,

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v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Plaintiff has not demonstrated he will be

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irreparably harmed in the absence of the requested relief.1
Moreover, the relief that plaintiff requests would not remedy the claim on which this

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action proceeds, that is, an alleged instance of excessive force in August of 2005. Plaintiff has

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not shown a likelihood of success on the merits, nor has he shown any relationship between the

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preliminary relief sought and the subject matter of this lawsuit. There is no evidence

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establishing that plaintiff is likely to prevail on his excessive force claim, or that the injunction

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sought is necessary to preserve the court’s ability to grant effective relief on those claims and

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that it is the least intrusive means for doing so.

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Finally, plaintiff’s concerns regarding the processing of his mail cannot be adjudicated in

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this action, where they cannot be properly exhausted through the administrative appeals process.

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See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v.

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Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be

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exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. CIV

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S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011); Fed.

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R. Civ. P. 20(a)(2) (multiple defendants may be joined in an action only where the suit regards

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“the same transaction, occurrence, or series of transactions or occurrences” or “any question of

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law or fact common to all defendants”).

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary
injunction (Dckt. Nos. 209, 212) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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Defendants shall make reasonable efforts to facilitate plaintiff’s ability to access his legal
materials as needed, before and during trial, so as to avoid any unnecessary delays.
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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 14, 2012.

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