(PC) Payne v. Hedgpeth et al, No. 1:2009cv00127 - Document 33 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Injunctive Relief, filed March 18, 2009 be DENIED; re 6 MOTION Temporary Injunction Relief ; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 01/24/2010. Objections to F&R due by 3/1/2010 (Martin, S)

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(PC) Payne v. Hedgpeth et al Doc. 33 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ORLANDO PAYNE, 11 Plaintiff, 12 13 1:09-cv-00127-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING DENIAL OF MOTION FOR PRELIMINARY INJUNCTIVE RELIEF (Doc. 6.) v. A. HEDGPETH, et al., 14 Defendants. OBJECTIONS, IF ANY, DUE IN 30 DAYS / 15 16 I. PROCEDURAL HISTORY 17 Plaintiff, Orlando Payne ("plaintiff”), is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was filed on 19 January 21, 2009. (Doc. 1.) On March 18, 2009, plaintiff filed a motion for injunctive relief. (Doc. 20 6.) 21 II. PRELIMINARY INJUNCTIVE RELIEF 22 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 23 Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 (2008) (citation omitted). “A plaintiff 24 seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is 25 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips 26 in his favor, and that an injunction is in the public interest.” Id. at 374 (citations omitted). An 27 injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376 28 (citation omitted) (emphasis added). 1 Dockets.Justia.com 1 This action is proceeding against defendants for failure to protect under the Eighth 2 Amendment, violation of right to privacy, violation of right to send and receive mail under the First 3 Amendment, and retaliation. Plaintiff alleges defendants caused or encouraged other inmates to 4 threaten to assault plaintiff, read plaintiff’s mail to other inmates, withheld and tampered with 5 plaintiff’s incoming mail, refused to send plaintiff’s outgoing mail, and retaliated against plaintiff 6 for filing 602 grievances and appeals. Plaintiff now requests a court order directing prison officials 7 to stop holding his mail, to process all of his grievance appeals, to stop harassing plaintiff, to stop 8 trying to cause other inmates to assault him, to stop trying to cause other correctional officers to 9 harm plaintiff, and to allow plaintiff access to the law library. 10 Plaintiff claims that his rights are being violated, but he has not made a clear showing in his 11 motion that without issuance of an injunction, he will suffer irreparable harm. Moreover, because 12 plaintiff’s motion was not signed under penalty of perjury, it contains no evidentiary support. For 13 these reasons, the court finds that plaintiff’s motion should be denied. 14 III. 15 16 RECOMMENDATIONS Based on the foregoing, the court HEREBY RECOMMENDS that plaintiff’s motion for injunctive relief, filed March 18, 2009, be DENIED. 17 These Findings and Recommendations will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 19 days after being served with these Findings and Recommendations, plaintiff may file written 20 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 21 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 22 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 23 1153 (9th Cir. 1991). 24 25 26 IT IS SO ORDERED. Dated: 6i0kij January 24, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 2

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