Smith v. Priolo et al

Filing 62

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/15/2012 RECOMMENDING that plaintiff's 60 motion, construed as a motion for preliminary injunction, be denied. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

EARL D. SMITH,
Plaintiff,

11
12

vs.

13

No. 2:09-cv-0654 JAM EFB P

B. PRIOLO, et al.,

14
15

Defendants.

FINDINGS AND RECOMMENDATIONS
/

16

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

17

U.S.C. § 1983. This action proceeds on an Eighth Amendment excessive force claim against

18

defendants Priolo and Delgado, and an Eighth Amendment failure to protect claim against

19

defendant Dharlingue. Plaintiff moves for an emergency “restraining order,” because he

20

believes that unidentified prison officials are poisoning his food and threatening him for filing

21

this lawsuit. Dckt. No. 60. The court construes plaintiff’s motion as a motion for a preliminary

22

injunction. So construed, plaintiff’s motion must be denied.

23

A preliminary injunction will not issue unless necessary to prevent threatened injury that

24

would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.

25

v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

26

F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching
1

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

test are also met.” Id. In cases brought by prisoners involving conditions of confinement, any

14

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

15

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

16

correct the harm.” 18 U.S.C. § 3626(a)(2).

17

Here, plaintiff has not shown a likelihood of success on the merits, nor has he shown any

18

relationship between the preliminary relief sought and the subject matter of this lawsuit. Apart

19

from plaintiff’s unsupported allegations, there is no evidence establishing that plaintiff is likely

20

to prevail on his Eighth Amendment claims, or that the injunction sought is necessary to preserve

21

the court’s ability to grant effective relief on those claims and that it is the least intrusive means

22

for doing so. Moreover, the allegations on which plaintiff bases his motion for preliminary

23

injunctive relief are properly the subject of another lawsuit and cannot be cannot be adjudicated

24

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

25

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

26

Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must
2

1

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

2

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

3

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

4

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

5

question of law or fact common to all defendants”). Accordingly, plaintiff’s motion for

6

preliminary injunctive relief must be denied.

7
8

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s November 8, 2012
motion (Dckt. No. 60), construed as a motion for a preliminary injunction, be denied.

9

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

10

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

11

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

12

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

13

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

14

within the specified time may waive the right to appeal the District Court’s order. Turner v.

15

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

16

Dated: November 15, 2012.

17
18
19
20
21
22
23
24
25
26
3