Brown v. Naseer

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/18/14 recommending that plaintiff's 07/01/14 request for preliminary injunctive relief 16 - 19 be denied. Motion 16 through 19 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M) Modified on 12/18/2014 (Plummer, M).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER BROWN, 12 Plaintiff, 13 14 No. 2:14-cv-0225 WBS CKD P v. FINDINGS AND RECOMMENDATIONS SAHIR NASEER, 15 Defendant. 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 17 18 rights under 42 U.S.C. § 1983. His remaining claim arises under the Eighth Amendment for 19 denial of adequate medical care. He asserts that between September 29 and October 1, 2013, 20 while plaintiff was housed at the California Health Care Facility in Stockton, defendant Dr. Sahir 21 Naseer failed to adequately treat plaintiff’s hyperkalemia (potassium toxicity). On July 1, 2014, plaintiff filed a motion seeking a preliminary injunction. Plaintiff asks 22 23 that the court make several orders directed at prison officials regarding his conditions of 24 confinement. There are two main problems with this motion. First, plaintiff’s remaining claim 25 concerns an isolated instance of what plaintiff alleges to be inadequate medical care occurring 26 over a year ago. Plaintiff does not challenge his ongoing care. Therefore the only appropriate 27 relief with respect to plaintiff’s claim at this point would be one for damages. Second, defendant 28 ///// 1 1 Naseer has not appeared in this action so the court does not have jurisdiction to grant preliminary 2 injunctive relief. While the court has the power under the “All Writs Act” (28 U.S.C. § 1651)1 to issue 3 4 orders necessary for the prosecution of this matter by plaintiff, plaintiff fails to show that exercise 5 of that power, in any respect, is warranted.2 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s July 1, 2014 request for 6 7 preliminary injunctive relief (ECF Nos. 16-19) be denied. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, plaintiff may file written objections 11 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 13 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 14 (9th Cir. 1991). 15 Dated: December 18, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 1 brow0225.pi 22 23 24 25 26 27 28 1 Under 28 U.S.C. § 1651, “. . . all courts established by an Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions . . .” 2 To the extent plaintiff believes his Constitutional rights have been violated, or are being violated, apart from the allegations supporting plaintiff’s remaining claim or in ways that do not prevent him from litigating this action, he should initiate a separate lawsuit. 2

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