Stephen v. Montejo et al

Filing 59

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/31/2020 ORDERING defendant Montejo to file answer to 15 Second Amended Complaint within 30 days of the filed date of this order and RECOMMENDING 53 Request for Preliminary Injunctive Relief be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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No. 2:18-cv-1796 KJM DB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

E. MONTEJO,
Defendant.

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. The

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parties participated in two settlement conferences as part of the court’s Alternative Dispute

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Resolution program. Because they were unable to reach a settlement, defendant Montejo will be

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ordered to file an answer to the second amended complaint.

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In a document filed here on January 24, 2020, plaintiff appears to be requesting two kinds

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of injunctive relief. (ECF No. 57.) First, plaintiff seeks an injunction preventing Warden Lozano

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from transferring him to another prison while he is undergoing treatment for cancer. Plaintiff is

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reminded that this action involves plaintiff’s treatment by Dr. Montejo for chronic kidney disease.

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Dr. Montejo is the only defendant remaining in this action. Preliminary injunctive relief is only

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appropriate to preserve the court’s power to render a meaningful decision on the merits. See 9

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Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2947 (3d ed. 2014).

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Plaintiff’s request does not relate to the merits of this action and is, therefore, not appropriate in
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this case. Further, injunctive relief is typically not appropriate against someone who is not a party

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to the case. See Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985)

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(“A federal court may issue an injunction if it has personal jurisdiction over the parties and

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subject matter jurisdiction over the claims . . . .”). The warden is no longer a party in this action.

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Plaintiff also states that Dr. Montejo and Warden Lozano have “failed to timely treat

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plaintiff’s cancer with diagnosed treatment of ‘radiation.’” He indicates he is seeking an

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injunction requiring Dr. Montejo and Warden Lozano to begin plaintiff’s radiation treatments

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immediately. Plaintiff again seeks injunctive relief unrelated to this action. This court will

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recommend plaintiff’s request for preliminary injunctive relief be denied.

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Accordingly, IT IS HEREBY ORDERED that defendant Montejo file an answer to the
second amended complaint within thirty days of the filed date of this order.
Further, IT IS RECOMMENDED that plaintiff’s request for preliminary injunctive relief
(ECF No. 53) be denied.
These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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

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objections with the court. The document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in waiver of the right to appeal the district court’s order. Martinez v.

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

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Dated: January 31, 2020

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DLB:9/DB/prisoner-civil rights/step1796.answ

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