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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 12 13 14 No. 2:16-CV-0517-JAM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS F. CUSTINO, et al., 15 Defendants. 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 17 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a temporary restraining order 19 (Doc. 85). 20 The legal principles applicable to requests for injunctive relief, such as a 21 temporary restraining order or preliminary injunction, are well established. To prevail, the 22 moving party must show that irreparable injury is likely in the absence of an injunction. See 23 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 24 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 25 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 26 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 27 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 28 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 1 1 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 2 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 3 however, issue an order against individuals who are not parties to the action. See Zenith Radio 4 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 5 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 6 prison renders the request for injunctive relief moot, unless there is some evidence of an 7 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 8 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 9 Plaintiff alleges he was assaulted by his cellmate on November 17, 2018, and 10 seeks an order requiring prison officials to grant him single-cell status. In this case, defendants 11 are either former or retired prison officials at Mule Creek State Prison, where plaintiff was 12 formerly housed and where the events alleged in the complaint occurred. The November 2018 13 cell assault allegedly occurred at Kern Valley State Prison, where plaintiff is currently housed, 14 but where no events alleged in the complaint occurred and no named defendants worked at the 15 time. No Kern Valley State Prison officials are named as defendants to this action. Because the 16 court does not have jurisdiction over prison officials at Kern Valley State Prison who are not 17 parties to this action, the court cannot issue the requested order. See Zenith Radio Corp., 395 18 U.S. at 112. 19 Moreover, injunctive relief is not warranted because plaintiff has not demonstrated 20 the likelihood of irreparable injury absent an order requiring single-cell status. See Stormans, 21 Inc., 586 F.3d at 1127. The November 2018 assault has already occurred and no prospective 22 injunctive relief can remedy that. Any assertion of a repeat assault in the future would be purely 23 speculative, particularly given the current record suggesting plaintiff instigated the November 24 2018 cell fight. See Doc. 85, pg. 4 (Exhibit attached to plaintiff’s motion for injunctive relief). 25 /// 26 /// 27 /// 28 /// 2 1 2 Based on the foregoing, the undersigned recommends that plaintiff’s motion for injunctive relief (Doc. 85) be denied. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written objections 6 with the court. Responses to objections shall be filed within 14 days after service of objections. 7 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 8 Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 Dated: January 16, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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