(PC)Smith v. Priolo et al, No. 2:2009cv00654 - Document 62 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/15/2012 RECOMMENDING that plaintiff's 60 motion, construed as a motion for preliminary injunction, be denied. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

Download PDF

(PC)Smith v. Priolo et al Doc. 62 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EARL D. SMITH, Plaintiff, 11 12 vs. 13 No. 2:09-cv-0654 JAM EFB P B. PRIOLO, et al., 14 15 16 Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. This action proceeds on an Eighth Amendment excessive force claim against 18 defendants Priolo and Delgado, and an Eighth Amendment failure to protect claim against 19 defendant Dharlingue. Plaintiff moves for an emergency “restraining order,” because he 20 believes that unidentified prison officials are poisoning his food and threatening him for filing 21 this lawsuit. Dckt. No. 60. The court construes plaintiff’s motion as a motion for a preliminary 22 injunction. So construed, plaintiff’s motion must be denied. 23 A preliminary injunction will not issue unless necessary to prevent threatened injury that 24 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 25 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 26 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 1 Dockets.Justia.com 1 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, 2 Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a 3 party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer 4 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 5 and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 6 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth 7 Circuit has also held that the “sliding scale” approach it applies to preliminary injunctions--that 8 is, balancing the elements of the preliminary injunction test, so that a stronger showing of one 9 element may offset a weaker showing of another--survives Winter and continues to be valid. 10 Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, 11 ‘serious questions going to the merits,’ and a hardship balance that tips sharply toward the 12 plaintiff can support issuance of an injunction, assuming the other two elements of the Winter 13 test are also met.” Id. In cases brought by prisoners involving conditions of confinement, any 14 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 15 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 16 correct the harm.” 18 U.S.C. § 3626(a)(2). 17 Here, plaintiff has not shown a likelihood of success on the merits, nor has he shown any 18 relationship between the preliminary relief sought and the subject matter of this lawsuit. Apart 19 from plaintiff’s unsupported allegations, there is no evidence establishing that plaintiff is likely 20 to prevail on his Eighth Amendment claims, or that the injunction sought is necessary to preserve 21 the court’s ability to grant effective relief on those claims and that it is the least intrusive means 22 for doing so. Moreover, the allegations on which plaintiff bases his motion for preliminary 23 injunctive relief are properly the subject of another lawsuit and cannot be cannot be adjudicated 24 in this action, where they cannot be properly exhausted through the administrative appeals 25 process. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and 26 Rhodes v. Robinson, 621 F.3d 1002, 1004-07 (9th Cir. 2010) (together holding that claims must 2 1 be exhausted prior to the filing of the original or supplemental complaint); Jones v. Felker, No. 2 CIV S-08-0096 KJM EFB P, 2011 U.S. Dist. LEXIS 13730, at *11-15 (E.D. Cal. Feb. 11, 2011); 3 Fed. R. Civ. P. 20(a)(2) (multiple defendants may be joined in an action only where the suit 4 regards “the same transaction, occurrence, or series of transactions or occurrences” or “any 5 question of law or fact common to all defendants”). Accordingly, plaintiff’s motion for 6 preliminary injunctive relief must be denied. 7 8 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s November 8, 2012 motion (Dckt. No. 60), construed as a motion for a preliminary injunction, be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: November 15, 2012. 17 18 19 20 21 22 23 24 25 26 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.