Calhoun v. Gomez et al

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/21/15 recommending that plaintiff's motion for a preliminary injunction 86 be denied. MOTION for PRELIMINARY INJUNCTION 86 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMONT L. CALHOUN,

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Plaintiff,

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No. 2:12-cv-2856-GEB-EFB P

v.

FINDINGS AND RECOMMENDATIONS

M. GOMEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. On December 7, 2015, he notified the court that he had been transferred to California

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State Prison, Corcoran (Corcoran) from Correctional Medical Facility (CMF) in Vacaville. ECF

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No. 85. Plaintiff stated that he would be unable to proceed with his deposition, which was

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scheduled for December 16, 2015 at CMF. Id. He further claimed that even if the deposition

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were rescheduled to take place at Corcoran, he would not be prepared to participate because he

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did not have his legal property. Id. On December 10, 2015, plaintiff filed a motion for a

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preliminary injunction requesting an order for the return of his legal property. ECF No. 86.

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Plaintiff again claims that without the legal property he will be unable to participate in his

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upcoming deposition. Id. Defendants oppose plaintiff’s motion and represent that the property

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has now been returned to plaintiff. ECF No. 87. For the reasons stated below, the court

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recommends that the motion be denied.

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm 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) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Defendants’ opposition indicates that all of plaintiff’s legal property was returned to him

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on December 8, 2015. ECF No. 87, Morgan Decl., Ex. A. Defendants also represent that on

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December 3, 2015, after being informed that plaintiff had been transferred to Corcoran, they re-

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noticed plaintiff’s deposition to take place on December 22, 2015, at Corcoran. As plaintiff

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already has his legal property and is now housed at the same institution where his deposition is

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schedule to take place, his request for a preliminary injunction is moot.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary
injunction (ECF No. 86) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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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.” Failure to file objections

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

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: December 21, 2015.

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