(PC) Peets v. Brown et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/12/2021 RECOMMENDING plaintiff's 36 motion be construed as a motion for injunctive relief and, so construed, be denied. Referred to Judge Kimberly J. Mueller; 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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LOUIS PEETS,

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No. 2:18-CV-2469-KJM-DMC-P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

SCOTT KERNAN, 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 an Order Granting

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Ongoing Access to the Prison’s Inmate Law Library and Declaration in Support Thereof,” ECF

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No. 36, which the Court construes as a motion for preliminary 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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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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Plaintiff seeks an order requiring prison officials to grant him six hours of law

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library time per week until this case is concluded. See ECF No. 36, pg. 1. Plaintiff states the

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motion is based on his constitutional right to access an adequate law library. See id. at 1-2.

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While Plaintiff has submitted a supporting declaration, he makes no showing regarding the

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likelihood of success on the merits of his underlying claims or the possibility of irreparable injury

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absent Court intervention. See e.g. id. at 3-4 (Plaintiff’s declaration). Regarding irreparable

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injury, the Court observes that there are currently no pending deadlines in this case to which

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Plaintiff must respond, and he has been able to file an opposition to Defendants’ pending motion

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to dismiss.

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Based on the foregoing, the undersigned recommends that Plaintiff’s motion, ECF
No. 36, be construed as a motion for injunctive relief and, so construed, 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: February 12, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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