(PC) Pogue v. Dr. Igbanosa et al, No. 1:2007cv01577 - Document 5 (E.D. Cal. 2007)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's request for preliminary injunctive relief filed with 2 complaint on October 11, 2007, be DENIED, without prejudice signed by Judge Sandra M. Snyder on 11/05/2007. Motion referred to Judge Wanger. Objections to F&R due by 12/10/2007. (Flores, E)
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(PC) Pogue v. Dr. Igbanosa et al Doc. 5 Case 1:07-cv-01577-OWW-SMS Document 5 Filed 11/05/2007 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LEON H. "QIYAM" POGUE, ) ) Plaintiff, ) ) v. ) ) JAMES YATES, et al., ) ) ) Defendants. ) ____________________________________) 1:07-cv-01577-OWW-SMS-PC FINDINGS AND RECOMMENDATIONS TO DENY PRELIMINARY INJUNCTION OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 Plaintiff, Leon H. "Qiyam" Pogue ("plaintiff") is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. On October 11, 2007, plaintiff filed the complaint in this 19 action at the United States District Court for the Northern District of California. On October 23, 2007, 20 the case was transferred to the Eastern District of California and received in this division on October 29, 21 2007. Plaintiff seeks an immediate preliminary injunction prohibiting defendants from forcing him to 22 remain at Pleasant Valley State Prison where there is no physical therapy for his recent surgery and 23 where he is suffering in pain and fear of retaliation by defendants for filing this complaint. 24 The purpose of a preliminary injunction is to preserve the status quo if the balance of equities 25 so heavily favors the moving party that justice requires the court to intervene to secure the positions until 26 the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 27 (1981). A preliminary injunction is available to a plaintiff who “demonstrates either (1) a combination 28 1 Dockets.Justia.com Case 1:07-cv-01577-OWW-SMS Document 5 Filed 11/05/2007 Page 2 of 3 1 of probable success and the possibility of irreparable harm, or (2) that serious questions are raised and 2 the balance of hardship tips in its favor.” Arcamuzi v. Continental Air Lines, Inc., 819 F. 2d 935, 937 3 (9th Cir. 1987). Under either approach the plaintiff “must demonstrate a significant threat of irreparable 4 injury.” Id. Also, an injunction should not issue if the plaintiff “shows no chance of success on the 5 merits.” Id. At a bare minimum, the plaintiff “must demonstrate a fair chance of success of the merits, 6 or questions serious enough to require litigation.” Id. 7 Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court must have 8 before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 9 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 10 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th 11 Cir. 2006). If the court does not have an actual case or controversy before it, it has no power to hear the 12 matter in question. Id. “A federal court may issue an injunction if it has personal jurisdiction over the 13 parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of 14 persons not before the court.” Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 15 1985) (emphasis added). 16 Plaintiff filed this action on October 11, 2007. The court has a large number of cases pending 17 before it and will screen plaintiff’s complaint for sufficiency of the claims in due course. 28 U.S.C. § 18 1915A. Plaintiff is not entitled to preliminary injunctive relief until such time as the court finds that his 19 complaint contains cognizable claims for relief against the named defendants and the named defendants 20 have been served with the summons and complaint. At this juncture, plaintiff’s request for preliminary 21 injunctive relief is premature. Plaintiff may file another request for preliminary injunctive relief at a later 22 stage. Plaintiff is cautioned that any further requests or motions for preliminary injunctive relief that are 23 filed before defendants are served with process in this case will be denied as premature. In addition, “a 24 preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the 25 movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 26 972 (1997) (quotations and citations omitted) (emphasis in original). Thus, a party seeking a preliminary 27 injunction must support the motion for relief by sufficient evidence. 28 2 Case 1:07-cv-01577-OWW-SMS Document 5 Filed 11/05/2007 Page 3 of 3 1 Based on the foregoing, the court HEREBY RECOMMENDS that plaintiff’s request for 2 preliminary injunctive relief, filed with the complaint on October 11, 2007, be DENIED, without 3 prejudice. These Findings and Recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 5 after being served with these Findings and Recommendations, plaintiff may file written objections with 6 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 8 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 IT IS SO ORDERED. 10 Dated: icido3 November 5, 2007 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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