Bardo v. Martel et al

Filing 37

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/12/2011 ORDERING 34 that pltf's request for leave to file a motion for summary judgment is DENIED as unneccessary; RECOMMENDING 35 that motion for a preliminary injunction be denied; Referred to Judge Frank C. Damrell, Jr. Objections due 14 days after being served with these F & R's.(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BARDO,
Plaintiff,

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vs.

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No. CIV S-09-3479 FCD EFB P

M. MARTEL, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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

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U.S.C. § 1983. Plaintiff requests permission from the court to file a motion for summary

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judgment. Dckt. No. 34. Plaintiff also requests a preliminary injunction. Dckt. No. 35.

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For the reasons explained below, the court will deny plaintiff’s request for permission to file a

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motion for summary judgment as unnecessary, and will recommend that plaintiff’s request for a

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preliminary injunction be denied.

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I.

Plaintiff’s Request for Permission to File Summary Judgment Motion
Plaintiff seeks leave of court to file a motion for summary judgment. Plaintiff’s request

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must be denied as unnecessary, as the January 25, 2011 discovery and scheduling order provides

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that the parties may file motions for summary judgment on or before August 5, 2011. Dckt. No.

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II.

Plaintiff’s Motion for A Preliminary Injunction

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Plaintiff seeks to enjoin Ironwood State Prison officials from enforcing an unwritten rule

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barring legal materials from the Ironwood State Prison A-yard kitchen, where plaintiff works as

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a line server. Dckt. No. 35. Plaintiff states that the first few hours of his shift involve little to no

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work, and he would like to spend that time working to meet his legal deadlines, especially when

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he is denied access to the law library in the mornings. Id. Defendants oppose plaintiff’s motion.

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Dckt. No. 36.

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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 cases brought by

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prisoners involving conditions of confinement, any preliminary injunction “must be narrowly

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drawn, extend no further than necessary to correct the harm the court finds requires preliminary

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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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Here, plaintiff’s motion for a preliminary injunction should be denied because plaintiff

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has shown no likelihood of irreparable harm in the absence of the requested injunctive relief.
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Moreover, prison officials at Ironwood State Prison, where plaintiff is presently located, are not

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a parties to this lawsuit. The court cannot issue an order against individuals who are not parties

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to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,

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112 (1969). See also Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir.

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1985) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and

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subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons

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not before the court.”).

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 16, 2011 request for leave
to file a motion for summary judgment is denied as unnecessary.
Further, IT IS HEREBY RECOMMENDED that plaintiff’s June 16, 2011 motion for a
preliminary injunction 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)(1). Within 14 days after

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

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

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to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158

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

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DATED: July 12, 2011.

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