Washington v. California Department of Corrections

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 09/12/17 RECOMMENDING that plaintiff's 15 , 21 , 33 motions be denied. Motions 15 , 21 , 33 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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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 11 WILLIAM NATHANIEL WASHINGTON, 12 13 14 No. 2:15-cv-2302-MCE-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATION CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendant. 16 17 / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the court are three additional motions for injunctive relief 19 plaintiff has filed (Docs. 15, 21, 33). Plaintiff’s previous motion for injunctive relief was denied. 20 This action proceeds against one defendant, Dr. Kuersten, regarding treatment for plaintiff’s 21 fractured finger. 22 In all three new motions for emergency injunctive relief and temporary restraining 23 order, plaintiff claims he is being subjected to retaliation by “the California Department of 24 Corrections.” This retaliation is in the form of relocating plaintiff, not transporting plaintiff’s 25 property to his current location, threatening total loss of his property, and keeping him on 26 orientation status. In addition, he requests an order from the court “enjoining the defendant, their 1 1 successors in office, agents and employees and all other persons acting in concert and 2 participation with them,” from disclosing information to inmates, withholding plaintiff’s mail, 3 and harassing plaintiff’s family and friends. 4 The legal principles applicable to requests for injunctive relief, such as a 5 temporary restraining order or preliminary injunction, are well established. To prevail, the 6 moving party must show that irreparable injury is likely in the absence of an injunction. See 7 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 8 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 9 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 10 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 11 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 12 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 13 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 14 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). In addition, the court 15 is unable to issue an order against individuals who are not parties to a suit pending before it. See 16 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). 17 In this case, plaintiff has requested the court order “the defendant, their successors 18 in office, agents and employees and all other persons acting in concert and participation with 19 them” to cease retaliation against plaintiff. Plaintiff’s motions are deficient for several reasons. 20 First, as stated above, the court can only issue an order against individuals who are parties to this 21 action. There is only one defendant to this action, and plaintiff fails to allege that it is the 22 defendant who is retaliating against him. To the extent plaintiff is requesting an order requiring 23 other individuals to cease such behavior, the court is unable to do so. 24 In addition, plaintiff has failed to meet the requirements of Local Rule 231(c)(4) 25 in that he did not file an affidavit in support of the existence of an irreparable injury. In fact, 26 plaintiff fails to address the irreparable injury completely in any of his motions. The harassment 2 1 plaintiff alleges, while unpleasant, does not appear to pose a threat of irreparable injury. Without 2 the affidavit, the undersigned is unable to properly assess the existence of such. Accordingly, plaintiff fails to make the required showing for a temporary 3 4 restraining order at this time. His motions for such should be denied. Based on the foregoing, the undersigned finds plaintiff fails to make the required 5 6 showing for a temporary restraining order and recommends that his motions (Docs. 15, 21, 33) be 7 denied. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court. Responses to objections shall be filed within 14 days after service of 12 objections. Failure to file objections within the specified time may waive the right to appeal. 13 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 DATED: September 12, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 3

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