Burton v. McDonald, et al

Filing 49

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/7/2011 RECOMMENDING that plaintiff's 42 motion to stay be denied. Referred to Judge John A. Mendez; Objections due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRISON L. BURTON,
Plaintiff,

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vs.

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No. 2:10-cv-1980 JAM JFM (PC)

WARDEN MCDONALD, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On October 20, 2011, plaintiff filed a document styled as a motion for a stay.

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By the motion, plaintiff seeks a temporary restraining order pending his appeal from the October

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5, 2011 order of the district court denying a motion for preliminary injunction. It is unclear what

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relief plaintiff seeks by the instant motion; it may be that he seeks, temporarily, the relief he

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sought in the motion that has been denied. By that motion, plaintiff sought an order requiring

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prison officials to provide him with law library access of four to six hours per week, similar to

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access received by other inmates, to make the prison law library compliant with an existing court

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order in a class action lawsuit, and to provide him with single cell status until this litigation is

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concluded.

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

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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).
Plaintiff has not made the showing required for injunctive relief. The instant

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motion is unsupported by any evidence, and there is nothing in the record before this court that

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supports a finding that plaintiff is faced with an imminent threat of irreparable harm.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s October 20, 2011

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motion be denied.
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 fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: November 7, 2011.

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burt1980.pi2

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