Brown v. Wheeler et al

Filing 19

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/5/11 ORDERING that the Clerk is directed to assign a District Judge to this action; RECOMMENDING that 15 MOTION for an order requiring that he be transferred and for other injunctive relief be denied; referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, 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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RICKY L. BROWN, JR.,

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Plaintiff,

No. 2:11-cv-0389 DAD (PC)

vs.

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IGI C/O WHEELER, et al.,

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Defendants.

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ORDER AND
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. Plaintiff has filed a motion for preliminary injunction seeking an order

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prohibiting defendants from retaliating against him during the pendency of these proceedings,

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requiring the warden of High Desert State Prison to have plaintiff transferred to another Level IV

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prison facility, and requiring prison officials to return plaintiff’s property to him.

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The principal purpose of preliminary injunctive relief is to preserve the court’s

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power to render a meaningful decision after a trial on the merits. See C. Wright & A. Miller, 11

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Federal Practice and Procedure, §2947 (1973); see also Fed. R. Civ. P. 65; Gon v. First State Ins.

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Co., 871 F.2d 863 (9th Cir.1989). “The proper legal standard for preliminary injunctive relief

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requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
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favor, and that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109,

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1127 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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See also Center for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter,

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‘plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a

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preliminary injunction.”); Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052

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(9th Cir.2009). The Ninth Circuit has found, however, that the “serious question” version of this

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circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.”

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Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). “That is, ‘serious

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questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff

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can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a

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likelihood of irreparable injury and that the injunction is in the public interest.” 632 F.3d at

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1135. Finally, 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).

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This action is proceeding on plaintiff’s claims that he was subjected to the

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excessive use of force and an unlawful body cavity search as raised in his original complaint,

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which was entered on the docket in this action on February 11, 2011. Plaintiff’s motion for

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injunctive relief is based on alleged events that occurred on May 19, 2011 and that are not

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included in his complaint. Because the claim raised in the pending motion is not part of the

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underlying complaint, it will not be given a hearing on the merits at trial. Moreover, plaintiff has

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not presented any evidence that he has attempted to use prison grievance procedures to remedy

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the alleged wrongful deprivation of his legal material. Plaintiff is not presently subject to any

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court-ordered deadlines in this action and thus may first use prison grievance procedures without

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suffering any cognizable irreparable injury to his ability to prosecute this action.

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For the foregoing reasons, plaintiff’s motion for preliminary injunction should be
denied.

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court is directed to assign this action to a United States District Judge; and

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IT IS HEREBY RECOMMENDED that plaintiff’s June 6, 2011 motion for an
order requiring that he be transferred and for other injunctive relief 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 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.” Any response to the objections shall be filed and served

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within fourteen days after service to the objections. Plaintiff is advised that failure to file

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

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 5, 2011.

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DAD:12
brow0389.pi

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