Armstead v. Virga et al

Filing 60

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/17/12 recommending that 58 MOTION for TEMPORARY RESTRAINING ORDER be denied. F&R referred to Judge John A. Mendez. Objections to F&R due within twenty one 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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JAMES ARMSTEAD,

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Plaintiff,

No. 2: 11-cv-1054 JAM KJN P

vs.
TIM V. VIRGA, et al.,
Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief

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filed October 11, 2012. For the following reasons, this motion should be denied.

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In the amended complaint, filed June 28, 2011, plaintiff alleges that he was

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subjected to an improper eleven month race-based lockdown. In the pending motion for

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injunctive relief, plaintiff alleges that medical staff have shown “complete indifference” to the

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infection he has been fighting for two months. Plaintiff requests that he be taken to U.C. Davis

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to see a physician.

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The Supreme Court has held that a preliminary injunction is appropriate to grant

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relief of the “same character as that which may be granted finally.” De Beers Consol. Mines v.

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U.S., 325 U.S. 212, 220 (1945). A court may not issue an injunction in “a matter lying wholly
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outside the issues in the suit.” Id. A court need not consider claims that were not raised in the

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complaint. McMichael v. Napa County, 709 F.2d 1268, 1273 n. 4 (9th Cir. 1983). Additionally,

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“a party moving for a preliminary injunction must necessarily establish a relationship between

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the injury claimed in the party's motion and the conduct asserted in the complaint.” Devose v.

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Herrington, 42 F.3d 470, 471 (8th Cir. 1994).

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The claims in plaintiff’s motion for injunctive relief are unrelated to the claims

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contained in the amended relief. For this reason, plaintiff’s motion for injunctive relief should be

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denied. Plaintiff may file a separate civil rights action challenging his claims regarding

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inadequate medical care.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for
injunctive relief (Dkt. No. 58) 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 response to the

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

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

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

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DATED: October 17, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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arm1054.pi

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