Brooks v. Haviland et al

Filing 62

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 8/18/11: Recommending that 52 MOTION for PRELIMINARY INJUNCTION be denied. 52 MOTION for PRELIMINARY INJUNCTION referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within twentyone days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD BROOK,

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Plaintiff,

No. CIV S-09-1364 GEB CKD P

vs.
V. SING, et al.,

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Defendant.

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FINDINGS & RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. On June 2, 2011, plaintiff filed a motion for a temporary

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restraining order and/or preliminary injunction against “the Defendants, their agents, and all

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employees of the State Prison, Solano, to stop and surcease all forms of coercion and retaliation

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against Plaintiff.” (Dkt. No. #52 at 1.) Defendants have not filed a response.

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Plaintiff’s request for a temporary restraining order is insufficient under E.D. Cal.

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Local Rule 231(c). Therefore, the request will be construed entirely as a motion for a preliminary

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injunction.

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The legal principles applicable to a request for injunctive relief are well

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established. To prevail, the moving party must show either a likelihood of success on the merits

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and the possibility of irreparable injury, or that serious questions are raised and the balance of
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hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122

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F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

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1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

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point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under

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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

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irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

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court need not reach the issue of likelihood of success on the merits. Id.

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In cases brought by prisoners involving conditions of confinement, any
preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

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

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

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Here, plaintiff makes various seemingly unrelated complaints – e.g., he received

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his legal mail five days later than promised, prison law library staff refused to grant him

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Preferred Library User Status, his name was not on the Assignment Waiting List – and alleges

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that defendant Cappel created these problems for him in retaliation for protected First

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Amendment activities. (Dkt. No. #52 at 8-9.) He further “believe[s] and fear[s]” that defendant

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Cappel intends to have him transferred to another prison for purposes of retaliation.1 (Id.)

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On June 20, 2011, the magistrate judge previously assigned to this case issued

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findings and recommendations, subsequently adopted by the district judge on August 1, 2011,

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finding that the only claims that survived the screening process concerned defendants’ alleged

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termination of plaintiff’s job assignment at the prison book bindery in retaliation for protected

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First Amendment activities. (Dkt. Nos. #53, #59.) As to defendant Cappel, plaintiff was found

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Speculative injury does not constitute irreparable harm. See Caribbean Marine Servs.
Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Goldie’s Bookstore, Inc. v. Superior Court,
739 F.2d 466, 472 (9th Cir. 1984). A presently existing actual threat must be shown, although
the injury need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100, 130-31 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997), cert. denied,
523 U.S. 1020 (1998); Caribbean Marine Servs. Co., 844 F.2d at 674.
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to state a retaliation claim based on Cappel’s alleged warning or threat “that if I pushed the issue

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[of a pending Inmate Appeal][,] the inmates on the yard who lost their jobs would blame me, and

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‘You know what that means.’” (Dkt. No. #11 at 2.) Plaintiff seeks to enjoin defendant Cappel

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for alleged actions outside the scope of these claims, and has demonstrated neither a likelihood of

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success on the merits nor the threat of irreparable injury as to defendant Cappel or any other

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named defendant.

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Plaintiff also seeks injunctive relief against individuals who are not named as

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defendants in this action. This court is unable to issue an order against individuals who are not

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parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

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100, 112 (1969).

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s June 2, 2011

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motion for temporary restraining order and preliminary injunction (Dkt. No. #52) be denied.

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These findings and recommendations are submitted to the United States District

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

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one days 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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 18, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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