Gibbs v. Bosenko

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 12/6/18 RECOMMENDING that 5 Motion for Injunctive Relief be Denied. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT A. GIBBS,

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No. 2:18-CV-0859-MCE-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

TOM BOSENKO,
Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief (Doc. 5).
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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In this case, plaintiff seeks an order requiring defendant, the Shasta County

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Sheriff, to “cease and desist” denying plaintiff access to the courts. Specifically, plaintiff

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contends defendant is implementing policies that curtail “telephonic access” to attorneys.

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Plaintiff also contends defendant’s policies improperly deny him the ability to make photocopies

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of legal documents. Finally, plaintiff claims defendant’s policy denies him access to legal forms.

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The court finds injunctive relief is not warranted because plaintiff cannot at this

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time establish a likelihood of success on the merits of his claim, and because plaintiff has not

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demonstrated irreparable harm absent an injunction. At plaintiff’s request, the court has

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recharacterized this action as a civil rights action and directed plaintiff to file an operative

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complaint alleging all his claims in a single pleading. To date, plaintiff has not filed his

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complaint. The court, therefor, cannot assess the merits of plaintiff’s claim. In addition,

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plaintiff’s allegations of generalized difficulty with access to the courts does not establish plaintiff

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will be irreparably harmed because plaintiff has not indicated he has or will be unable to meet any

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deadlines or that he has or will be unable to file a meritorious civil action or habeas claim.

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Plaintiff’s contentions fail to establish an actual injury with respect to his access to the courts, see

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Lewis v. Casey, 518 U.S. 343, 349 (1996) (holding an “actual injury” necessary to plead a claim

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based on denial of access to the courts is prejudice with respect to contemplated or existing

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litigation, such as the inability to meet a filing deadline or present a non-frivolous claim), let

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alone an irreparable harm.

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Based on the foregoing, the undersigned recommends that plaintiff’s motion for
injunctive relief (Doc. 5) 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: December 6, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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