(PC)Williams v. Phillips, No. 1:2010cv00131 - Document 36 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 35 MOTION for PRELIMINARY INJUNCTION be DENIED, signed by Magistrate Judge Jennifer L. Thurston on 9/13/2011, referred to Judge Ishii. Objections to F&R Due Within Fourteen (14) Days. (Marrujo, C)

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(PC)Williams v. Phillips Doc. 36 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYLESTER WILLIAMS, 12 13 14 Case No. 1:10-cv-0131 AWI JLT (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF BE DENIED vs. BOBBY PHILLIPS, (Doc. 35) 15 16 Defendant. / 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendant was deliberately indifferent to his health 19 and safety in violation of the Eighth Amendment. (Doc. 11.) On September 9, 2011, Plaintiff filed a 20 motion seeking a transfer to a new institution of incarceration. (Doc. 35.) 21 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 22 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance 23 of the equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural 24 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). “A preliminary injunction 25 is an extraordinary remedy never awarded as of right.” Id. at 24 (citation omitted). It may be awarded 26 only upon a clear showing that the movant is entitled to relief. Id. 27 In evaluating the Winter factors, the Ninth Circuit has maintained the “sliding scale” approach. 28 Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1052-53 (9th Cir. 2010). Under this approach, 1 Dockets.Justia.com 1 “the elements of the preliminary injunction are balanced, so that a stronger showing of one element may 2 offset a weaker showing of another.” Id. at 1049. Nevertheless, while the elements may be balanced, 3 all four factors must be present in order to warrant injunctive relief. Id. at 1052-53. 4 Here, Plaintiff has failed to address any of the elements required for a preliminary injunction. 5 There is no showing that Plaintiff is likely to succeed on the merits of his claims,1 that he is likely to 6 suffer irreparable harm in the absence of preliminary relief, that the balance of the equities is in his favor, 7 or that an injunction is in the public interest. Nor is Plaintiff likely able to make such a showing. For 8 example, it appears unlikely that Plaintiff will be able to show that the presence of swarms of flies and 9 vermin, although indeed unsanitary, pose such an immediate and lasting threat to his health and well- 10 being that action must be taken now. 11 Accordingly, because Plaintiff has failed to clearly demonstrate that he is entitled to a preliminary 12 injunction, it is HEREBY RECOMMENDED that Plaintiff’s September 9, 2011 motion for injunctive 13 relief (Doc. 35) be DENIED. 14 These findings and recommendations are submitted to the United States District Judge assigned 15 to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being 16 served with these findings and recommendations, Plaintiff may file objections with the Court. Such a 17 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 18 Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal 19 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 IT IS SO ORDERED. 22 Dated: September 13, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 The fact that the Court found Plaintiff’s claims to be cognizable in its screening order pursuant to 28 U.S.C. § 1915A(a) does not equate, per se, to a finding that Plaintiff is likely to succeed on the merits of his claims. 2

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