(PC)Driver v. Chavez

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/18/2022 RECOMMENDING plaintiff's 5 motion for injunctive relief be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

Case 2:22-cv-01447-KJM-DMC Document 17 Filed 11/21/22 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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BILLY DRIVER, JR.,

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No. 2:22-CV-1447-KJM-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CHAVEZ,
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, ECF No. 5, for injunctive relief.
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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Case 2:22-cv-01447-KJM-DMC Document 17 Filed 11/21/22 Page 2 of 3
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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 his motion, Plaintiff appears to fear retaliatory transfer to a different prison by
unnamed prison officials in order to “sweep under the rug” his complaints of safety concerns.

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See ECF No. 5, pg. 2. Plaintiff asks the Court to order his immediate release as the only remedy

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for the feared transfer. See id.
The Court finds that the requested injunctive relief is not available. First, the

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Court cannot issue injunctive relief against someone who is not a party to the action. See Zenith

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Radio, 395 U.S. at 112. Plaintiff does not indicate in his current motion any involvement by the

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only defendant named in this case – Chavez. Second, Plaintiff has not demonstrated any

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likelihood of success on the merits. See Stormans, 586 F.3d at 1127. In his complaint, Plaintiff

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alleged a single past instance of excessive force. In the current motion, Plaintiff alleges a fear of

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a retaliatory prison transfer. Plaintiff does not address the merits of his excessive force claim, and

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Plaintiff’s claim of a retaliatory prison transfer in the future is speculative. Finally, immediate

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release is not an available remedy in the context of a civil rights action. See Preiser v. Rodriguez,

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411 U.S. 475, 500 (1973).

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Case 2:22-cv-01447-KJM-DMC Document 17 Filed 11/21/22 Page 3 of 3
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Based on the foregoing, the undersigned recommends that Plaintiff’s motion, ECF
No. 5, for injunctive relief 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: November 18, 2022

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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