Sekona v. Custino, et al.

Filing 97

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/16/19 RECOMMENDING that plaintiff's motion for injunctive relief 85 be denied. Motion for injunctive relief 85 referred to Judge John A. Mendez. 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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ETUATE SEKONA,

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No. 2:16-CV-0517-JAM-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

F. CUSTINO, et al.,

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Defendants.

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

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42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a temporary restraining order

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(Doc. 85).

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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). The court cannot,

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however, issue an order against individuals who are not parties to the action. See Zenith Radio

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Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking

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injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another

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prison renders the request for injunctive relief moot, unless there is some evidence of an

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expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975);

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Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam).

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Plaintiff alleges he was assaulted by his cellmate on November 17, 2018, and

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seeks an order requiring prison officials to grant him single-cell status. In this case, defendants

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are either former or retired prison officials at Mule Creek State Prison, where plaintiff was

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formerly housed and where the events alleged in the complaint occurred. The November 2018

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cell assault allegedly occurred at Kern Valley State Prison, where plaintiff is currently housed,

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but where no events alleged in the complaint occurred and no named defendants worked at the

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time. No Kern Valley State Prison officials are named as defendants to this action. Because the

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court does not have jurisdiction over prison officials at Kern Valley State Prison who are not

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parties to this action, the court cannot issue the requested order. See Zenith Radio Corp., 395

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U.S. at 112.

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Moreover, injunctive relief is not warranted because plaintiff has not demonstrated

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the likelihood of irreparable injury absent an order requiring single-cell status. See Stormans,

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Inc., 586 F.3d at 1127. The November 2018 assault has already occurred and no prospective

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injunctive relief can remedy that. Any assertion of a repeat assault in the future would be purely

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speculative, particularly given the current record suggesting plaintiff instigated the November

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2018 cell fight. See Doc. 85, pg. 4 (Exhibit attached to plaintiff’s motion for injunctive relief).

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Based on the foregoing, the undersigned recommends that plaintiff’s motion for
injunctive relief (Doc. 85) 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 14 days

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after being served with these findings and recommendations, any party may file written objections

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

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

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

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Dated: January 16, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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