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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM NATHANIEL WASHINGTON,

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No. 2:15-cv-2302-MCE-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court are three additional motions for injunctive relief

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plaintiff has filed (Docs. 15, 21, 33). Plaintiff’s previous motion for injunctive relief was denied.

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This action proceeds against one defendant, Dr. Kuersten, regarding treatment for plaintiff’s

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fractured finger.

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In all three new motions for emergency injunctive relief and temporary restraining

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order, plaintiff claims he is being subjected to retaliation by “the California Department of

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Corrections.” This retaliation is in the form of relocating plaintiff, not transporting plaintiff’s

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property to his current location, threatening total loss of his property, and keeping him on

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orientation status. In addition, he requests an order from the court “enjoining the defendant, their
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successors in office, agents and employees and all other persons acting in concert and

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participation with them,” from disclosing information to inmates, withholding plaintiff’s mail,

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and harassing plaintiff’s family and friends.

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). In addition, the court

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is unable to issue an order against individuals who are not parties to a suit pending before it. See

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Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).

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In this case, plaintiff has requested the court order “the defendant, their successors

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in office, agents and employees and all other persons acting in concert and participation with

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them” to cease retaliation against plaintiff. Plaintiff’s motions are deficient for several reasons.

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First, as stated above, the court can only issue an order against individuals who are parties to this

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action. There is only one defendant to this action, and plaintiff fails to allege that it is the

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defendant who is retaliating against him. To the extent plaintiff is requesting an order requiring

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other individuals to cease such behavior, the court is unable to do so.

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In addition, plaintiff has failed to meet the requirements of Local Rule 231(c)(4)

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in that he did not file an affidavit in support of the existence of an irreparable injury. In fact,

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plaintiff fails to address the irreparable injury completely in any of his motions. The harassment
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plaintiff alleges, while unpleasant, does not appear to pose a threat of irreparable injury. Without

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the affidavit, the undersigned is unable to properly assess the existence of such.
Accordingly, plaintiff fails to make the required showing for a temporary

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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

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showing for a temporary restraining order and recommends that his motions (Docs. 15, 21, 33) be

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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 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 12, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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