Farley v. Virga, et al

Filing 42

ORDER ADOPTING 36 FINDINGS AND RECOMMENDATIONS in part signed by Judge Kimberly J. Mueller on 2/19/13. 33 Motion for Injunctive Relief is DENIED. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEONARD FARLEY,
Plaintiff,

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vs.

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No. 2:11-cv-1830 KJM KJN P

TIM VIRGA, et al.,
Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On September 24, 2012, the magistrate judge filed findings and

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recommendations, which were served on all parties and which contained notice to all parties that

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any objections to the findings and recommendations were to be filed within fourteen days.

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Neither party has filed objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983). Having carefully reviewed the file, the court adopts the findings and recommendations to

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the extent that they recommend denying plaintiff’s motion for preliminary injunction because it

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is not cognizable as part of the underlying complaint.

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Injunctive relief is an extraordinary remedy that may only be awarded upon a

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clear showing that the moving party is entitled to such relief. Winter v. Natural Res. Defense

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Council, Inc., 555 U.S. 7, 22 (2008). As provided by Federal Rule of Civil Procedure 65, a court

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may issue a preliminary injunction to preserve the relative position of the parties pending a trial

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on the merits. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The party seeking

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injunctive relief must show it “is likely to succeed on the merits, . . . is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that

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an injunction is in the public interest.” Winter, 555 U.S. at 20. Accordingly, the temporary

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relief that plaintiff seeks must be connected to the allegations in the underlying complaint.

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Because plaintiff’s motion is based on events that occurred on July 3, 2012 and the complaint

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challenges actions that happened on July 21, 2010, the court cannot grant injunctive relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 24, 2012, are adopted in

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part; and
2. Plaintiff’s July 6, 2012, motion for injunctive relief (dkt. no. 33) is denied.
DATED: February 19, 2013.

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UNITED STATES DISTRICT JUDGE

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