Anderson v. Kelso, et al.

Filing 75

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/3/12 RECOMMENDING that 65 MOTION regarding retaliation, construed as a motion for injunctive relief, be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 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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SAMUEL ANDERSON,

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Plaintiff,

No. 2: 12-cv-0261 MCE KJN P

vs.

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MATTHEW TATE, et al.,

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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. On June 27, 2012, plaintiff filed a document titled “Retaliation.”

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In this document, plaintiff alleges that he is being retaliated against for pursuing this action and

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requests that the court order the Warden to prohibit any further retaliation. The undersigned

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construes plaintiff’s June 27, 2012 document as a motion for injunctive relief. For the following

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reasons, plaintiff’s motion should be denied.

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Legal Standard for Injunctive Relief

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“The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.
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2009), quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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A Ninth Circuit panel has found that post-Winter, this circuit’s sliding scale

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approach or “serious questions” test survives “when applied as part of the four-element Winter

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test.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-1132 (9th Cir. 2011). “In

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other words, ‘serious questions going to the merits,’ and a hardship balance that tips sharply

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toward the plaintiff can support issuance of an injunction, assuming the other two elements of the

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Winter test are also met.” Id. at 1132.

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

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In the pending motion, plaintiff alleges that June 20, 2012, he was issued a ducat

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pass to see the doctor on D yard. Plaintiff alleges that when he entered the clinic, Officer

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Peterson started issuing orders that “had nothing to do with the daily routine of prison life.”

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Plaintiff alleges that Officer Peterson “dreamed up” a regulation to justify his removal of

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plaintiff’s beanie. Plaintiff alleges that the only purpose of Officer Peterson’s conduct was to

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have plaintiff removed from the clinic so he could not see a doctor.

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Plaintiff has not alleged any facts suggesting that Officer Peterson’s conduct was

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motivated by retaliation for plaintiff’s litigation of the instant action. Officer Peterson is not a

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defendant in this action. Plaintiff does not allege that Officer Peterson is aware of the instant

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action or made comments to plaintiff regarding this action. Plaintiff alleges no other instances of

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retaliation by any named defendant.

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Because plaintiff’s allegations regarding retaliation are not well supported, the

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motion for injunctive relief should be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s June 27, 2012
motion regarding retaliation (Dkt. No. 65), construed as a motion for 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 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: August 3, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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an261.57

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