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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES ARMSTEAD, 11 12 13 14 Plaintiff, No. 2: 11-cv-1054 JAM KJN P vs. TIM V. VIRGA, et al., Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action 17 pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief 18 filed October 11, 2012. For the following reasons, this motion should be denied. 19 In the amended complaint, filed June 28, 2011, plaintiff alleges that he was 20 subjected to an improper eleven month race-based lockdown. In the pending motion for 21 injunctive relief, plaintiff alleges that medical staff have shown “complete indifference” to the 22 infection he has been fighting for two months. Plaintiff requests that he be taken to U.C. Davis 23 to see a physician. 24 The Supreme Court has held that a preliminary injunction is appropriate to grant 25 relief of the “same character as that which may be granted finally.” De Beers Consol. Mines v. 26 U.S., 325 U.S. 212, 220 (1945). A court may not issue an injunction in “a matter lying wholly 1 1 outside the issues in the suit.” Id. A court need not consider claims that were not raised in the 2 complaint. McMichael v. Napa County, 709 F.2d 1268, 1273 n. 4 (9th Cir. 1983). Additionally, 3 “a party moving for a preliminary injunction must necessarily establish a relationship between 4 the injury claimed in the party's motion and the conduct asserted in the complaint.” Devose v. 5 Herrington, 42 F.3d 470, 471 (8th Cir. 1994). 6 The claims in plaintiff’s motion for injunctive relief are unrelated to the claims 7 contained in the amended relief. For this reason, plaintiff’s motion for injunctive relief should be 8 denied. Plaintiff may file a separate civil rights action challenging his claims regarding 9 inadequate medical care. 10 11 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive relief (Dkt. No. 58) be denied. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 14 one days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: October 17, 2012 21 22 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 23 24 arm1054.pi 25 26 2

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