(PC) Savage v. Hubbard, et al, No. 2:2008cv01346 - Document 99 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/5/2010 RECOMMENDING that pltf's 80 motion for a court order be denied. Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 14 days. (Yin, K)
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(PC) Savage v. Hubbard, et al Doc. 99 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BOB SAVAGE, 11 Plaintiff, 12 13 No. 2:08-cv-1346 LKK JFM (PC) vs. SUZAN HUBBARD, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. On March 15, 2010, plaintiff filed a motion for a court order requiring 18 defendants to permit him to acquire certain “supplies and tools” with which to prosecute this 19 action and to permit plaintiff’s wife to bring legal materials with her to their regular visits. On 20 April 5, 2010, the court issued a notice setting a briefing schedule for the motion pursuant to 21 Local Rule 230(l). Defendants did not timely file an opposition to the motion, and on June 30, 22 2010, this court issued an order directing defendants to show cause within ten days why 23 plaintiff’s motion should not be granted. On July 2, 2010, defendants filed a response to the 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com 1 order to show cause, in which they oppose the motion. On July 12, 2010, plaintiff filed a 2 document styled as objections to the order to show cause.1 3 The legal principles applicable to a request for preliminary injunctive relief are 4 well established. To prevail, the moving party must show either "(1) a likelihood of success on 5 the merits and the possibility of irreparable injury, or (2) the existence of serious questions going 6 to the merits and the balance of hardships tipping in [the moving party's] favor." Oakland 7 Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), 8 quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); 9 see also Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985). The two formulations 10 represent two points on a sliding scale with the focal point being the degree of irreparable injury 11 shown. Oakland Tribune, 762 F.2d at 1376. "Under either formulation of the test, plaintiff must 12 demonstrate that there exists a significant threat of irreparable injury." Id. In the absence of a 13 significant showing of irreparability, the court need not reach the issue of likelihood of success 14 on the merits. Id. 15 Initially, the principal purpose of preliminary injunctive relief is to preserve the 16 court’s power to render a meaningful decision after a trial on the merits. See C. Wright & A. 17 Miller, 11 Federal Practice and Procedure, §2947 (1973). In addition to demonstrating that he 18 will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must 19 show a “fair chance of success on the merits” of his claim. Sports Form, Inc. v. United Press 20 International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of 21 International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 22 1979). Implicit in this required showing is that the relief awarded is only temporary and there 23 ///// 24 1 25 26 In that document, plaintiff also requests that the district court vacate the referral of this action to the undersigned. By order filed July 1, 2010, the district court denied plaintiff’s previously filed request for reassignment of this action to a new magistrate judge. That order is dispositive of the instant request. 2 1 will be a full hearing on the merits of the claims raised in the injunction when the action is 2 brought to trial. 3 This action is proceeding on claims raised in plaintiff’s first amended complaint, 4 filed January 22, 2009, arising from alleged actions taken to deny plaintiff participation in the 5 Meals on Wheels program at California Medical Facility (CMF). Plaintiff’s claim concerning 6 alleged interference with access to the courts through the denial of his request to obtain and keep 7 a computer with a legal database, word processing program and printer has been dismissed from 8 this action. See Findings and Recommendations, filed December 16, 2009, at 9-11; Order filed 9 March 11, 2010, at 2. The contentions raised in plaintiff’s motion are not cognizable as part of 10 the underlying complaint and therefore will not be given a hearing on the merits at trial. 11 Moreover, to the extent that plaintiff’s motion is predicated on allegations that might suggest 12 interference with his ability to prosecute this action, the record before this court amply 13 demonstrates that plaintiff has not suffered cognizable harm to his ability to pursue the claims 14 raised in his first amended complaint. 15 16 Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff’s March 15, 2010 motion be denied. 17 These findings and recommendations are submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 19 days after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be filed and served within fourteen days after service of the objections. The 23 ///// 24 ///// 25 ///// 26 ///// 3 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 5, 2010. 4 5 6 7 8 12 sava1346.inj 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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