Davis v. Wheeler et al

Filing 57

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/12/2021 RECOMMENDING plaintiff's 43 motion for injunctive relief be denied as moot. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

Case 2:16-cv-02917-TLN-DMC Document 57 Filed 02/16/21 Page 1 of 3
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DAVIS,

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No. 2:16-CV-2917-TLN-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

Z. WHEELER, 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, ECF No. 43, for preliminary

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injunctive relief.

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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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Case 2:16-cv-02917-TLN-DMC Document 57 Filed 02/16/21 Page 2 of 3
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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).
Plaintiff seeks an order requiring Defendants Wheeler and Romney to “stay far

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away” from him. ECF No. 43, pg. 1. In his motion for injunctive relief, Plaintiff alleges that

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Defendants are “harassing, ploting [sic], & trying to retaliate by using ‘his,’ Z. Wheeler ‘power’

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of authority to manipulating [sic] & influencen [sic] other employee(s)/correctional officer(s) at

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California State Prison – Sacramento. . . .” Id. Plaintiff states that he “[m]ay” suffer irreparable

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harm from retaliation. Id. at 2. Plaintiff states that, on August 9, 2020, Defendant Wheeler

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recognized Plaintiff in his cell during a mental health wellness check of inmates in Plaintiff’s

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housing unit. See id. at 4. According to Plaintiff, Defendant Wheeler gawked and stared at him

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“with an intimidation [sic] look upon his face/posture.” Id. (underlining in original). Plaintiff

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adds that Defendant Wheeler kept glancing up at Plaintiff’s cell “with quick back & fourth [sic]

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motion(s) as if to plan, plot or sceem [sic] of (retaliation, harass, or physically) ‘assault again,’

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sense [sic] Plaintiff has this case pending against Defendant Z. Wheeler et al.” Id. at 4-5.
According to Plaintiff’s first amended complaint, Defendants were at the time of

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the events alleged correctional officers at California State Prison – Sacramento. See ECF No. 19,

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pg. 2. Since the filing of the first amended complaint, Plaintiff has been transferred to the

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California Healthcare Facility. See ECF No. 54 (Notice of Change of Address). Plaintiff has not

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made any showing that he expects to be transferred back to California State Prison – Sacramento.

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Nor is there any evidence that Defendants still work at that particular institution. For these

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reasons, the Court finds that Plaintiff’s motion for injunctive relief should be denied as moot.

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Case 2:16-cv-02917-TLN-DMC Document 57 Filed 02/16/21 Page 3 of 3
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Based on the foregoing, the undersigned recommends that Plaintiff’s motion for
injunctive relief, ECF No. 43, be denied as moot.

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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: February 12, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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