(PC) Buckley v. Scribner, et al, No. 1:2004cv05622 - Document 92 (E.D. Cal. 2012)
Court Description: FINDINGS And RECOMMENDATIONS Denying Plaintiff's Motion For Order To Show Cause And Temporary Restraining Order (ECF NO. 84 ), signed by Magistrate Judge Michael J. Seng on 9/6/2012. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 9/25/2012. (Fahrney, E)
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(PC) Buckley v. Scribner, et al Doc. 92 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTONIO CORTEZ BUCKLEY, CASE No. 1:04-cv-05622-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER 10 Plaintiff, 11 vs. 12 (ECF No. 84) 13 A.K. SCRIBNER, et al., 14 Defendants. 15 _____________________________/ 16 17 18 I. PROCEDURAL HISTORY Plaintiff Antonio Cortez Buckley is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action filed on April 26, 2004 pursuant to 42 U.S.C. § 20 1983. (ECF No. 1.) Plaintiff is proceeding on his First Amended Complaint claim that 21 Defendants Dotson, Parangan, Jarralimillio, Peck, Lerman, and Ocegura violated his 22 First Amendment right to free exercise of religion. (ECF Nos. 29, 48, 51.) On July 11, 23 2012, Defendants filed a motion for summary judgment. (ECF No. 78.) On August 1, 24 2012, the Court issued its amended second informational order - notice and warning of 25 requirements for opposing Defendants’ summary judgment motion (ECF No. 81), 26 requiring that Plaintiff’s file his response to Defendants’ motion for summary judgment 27 28 -1- Dockets.Justia.com 1 not later than October 4, 2012. On September 4, 2012, Plaintiff filed a request for 2 order to show cause and temporary restraining order (“TRO”), requiring corrections 3 staff provide him access to the Salinas Valley State Prison (SVSP) law library to 4 prepare his opposition to Defendant motion for summary judgment. (ECF No. 84.) On 5 September 4, 2012, Plaintiff also filed his opposition to Defendants’ motion for 6 summary judgment. (ECF No. 85-89.) The request for TRO is now before the Court. 7 II. ARGUMENT 8 Plaintiff argues in support of his motion: He has advised SVSP corrections staff 9 of his deadline to file opposition to Defendants’ motion for summary judgment. SVSP 10 is on lockdown. Prison; staff has refused him access to the law library to copy his 11 opposition documents as necessary for filing. Staff has not responded to his appeal 12 seeking library access. He asks the Court to provide relief by issuing a TRO. 13 14 15 III. LEGAL STANDARDS The relief Plaintiff seeks is injunctive in nature. Injunctive relief, whether 16 temporary or permanent, is an “extraordinary remedy, never awarded as of right.” 17 Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008). “A plaintiff seeking a 18 preliminary injunction must establish that he is likely to succeed on the merits, that he 19 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance 20 of equities tips in his favor, and that an injunction is in the public interest.” Am. 21 Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), 22 quoting Winter, 555 U.S. at 20. An injunction may only be awarded upon a clear 23 showing that the plaintiff is entitled to relief. Winter, 555 U.S. at 22. 24 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) 25 of the Prison Litigation Reform Act (“PLRA”), which requires that the Court find the 26 “relief [sought] is narrowly drawn, extends no further than necessary to correct the 27 28 -2- 1 violation of the federal right, and is the least intrusive means necessary to correct the 2 violation of the federal right.” Injunctive relief should be used “sparingly, and only . . . in clear and plain 3 4 case[s].” Rizzo v. Goode, 423 U.S. 362, 378 (1976). 5 IV. ANALYSIS 6 Plaintiff has failed to satisfy the legal prerequisites for injunctive relief. 7 On September 4, 2012, Planitiff filed his opposition to Defendants’ motion for 8 summary judgment. This filing is inconsistent with the claim that Plaintiff will suffer 9 irreparable harm if the relief is not granted and effectively renders the motion moot. 10 Preiser v. Newkirk, 422 U.S. 395, 402–03 (1975); Johnson v. Moore, 948 F.2d 517, 11 519 (9th Cir. 1991); see also Andrews v. Cervantes, 493 F.3d 1047, 1053, n.5 (9th Cir. 12 2007). The harm alleged here does not “fall within that category of harm ‘capable of 13 repetition, yet evading review’”. Preiser, 422 U.S. 395 at 403, quoting Southern Pacific 14 Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). There is no real and immediate threat 15 of injury requiring the extraordinary remedy of injunctive relief. See City of Los Angeles 16 v. Lyons, 461 U.S. 95, 101–102 (1983) (plaintiff must show “real and immediate” threat 17 of injury, and “past exposure to illegal conduct does not in itself show a present case or 18 controversy regarding injunctive relief . . . if unaccompanied by any continuing, 19 present, adverse effects.”) Even if Plaintiff has not yet filed his opposition, it is not due 20 until October 4, 2012, obviating any claim of immediate threat. 21 22 23 Additionally, there is no allegation of facts demonstrating a likelihood of success on the merits. The absence of a showing of likelihood of success on the merits and of 24 irreparable harm leaves nothing to tip the balance of equities in Plaintiff's favor, or 25 suggest that an injunction would be in the public interest. The state is not required to 26 enable inmates to litigate effectively. Lewis v. Casey, 518 U.S. 343, 354 (1996). 27 28 -3- Absent the existence of exceptional circumstances not present here, the Court 1 2 will not intervene in the day-to-day management of prisons. See e.g., Overton v. 3 Bazzetta, 539 U.S. 126, 132 (2003) (prison officials entitled to substantial deference); 4 Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (disapproving the involvement of 5 federal courts in the day-to-day-management of prisons). Plaintiff's allegations do not support an entitlement to injunctive relief. 6 7 V. Plaintiff fails to provide facts which would enable the Court to find that he is in 8 9 CONCLUSION AND ORDER need of and entitled to injunctive relief. 10 Accordingly, for the reasons stated above the Court RECOMMENDS that 11 Plaintiff's request for TRO (ECF No. 84) be DENIED without prejudice. These findings 12 and recommendations are submitted to the United States District Judge assigned to 13 the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 days after being served with these findings and recommendations, any party may file 15 written objections with the Court and serve a copy on all parties. Such a document 16 should be captioned “Objections to Magistrate Judge's Findings and 17 Recommendations.” Any reply to the objections shall be served and filed within ten 18 (10) days after service of the objections. The parties are advised that failure to file 19 objections within the specified time may waive the right to appeal the District Court's 20 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 IT IS SO ORDERED. 24 25 Dated: ci4d6 September 6, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 -4-
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