Rebidoux v. Macomber et al

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 3/8/2017 RECOMMEDING plaintiff's 2 motion for injunctive relief be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON REBIDOUX,

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Plaintiff,

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No. 2:16-CV-1033-MCE-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

J. MACOMBER, et al.,
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 injunctive relief (Doc. 2).

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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).

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In this case, plaintiff seeks an order enjoining defendant Macomber from allowing

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other prison officials to retaliate against plaintiff, deny medical care, prevent family visits, or

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thwart plaintiff’s attempts to exhaust administrative remedies. More specifically, plaintiff states

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that he faces a safety risk as a witness in two state court murder trials against gang members. It

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should be noted that no such allegations are contained in the complaint.

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The court finds that plaintiff cannot satisfy the showing required for injunctive

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relief. First and foremost, plaintiff has not stated a cognizable claim against defendant

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Macomber. As discussed in the accompanying order, plaintiff’s claim against defendant

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Macomber is based entirely on a theory of respondeat superior liability. Thus, plaintiff cannot

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demonstrate any likelihood of success on the merits of his claim against defendant Macomber,

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who is the only defendant named in the instant motion for injunctive relief. Moreover, the basis

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for plaintiff’s motion is the contention that his safety is at risk. This allegation, however, does

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not appear in the complaint. For this additional reason, plaintiff has not shown any likelihood of

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success on the merits of a claim alleged in the complaint. Finally, while plaintiff has indicated

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the potential for a safety risk, he has not alleged any facts – either in the underlying complaint or

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in the instant motion – showing the likelihood of irreparable injury absent an injunction.

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Based on the foregoing, the undersigned recommends that plaintiff’s motion for
injunctive relief (Doc. 2) 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

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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: March 8, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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