(PC) Gil v. Yates et al, No. 1:2009cv00552 - Document 20 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Dennis L. Beck on 10/13/2009, Recommending that Plaintiff's Motion for Preliminary Injunctive Relief be Denied re 13 . Motion referred to Judge Ishii. ( Objections to F&R due by 11/16/2009) (Figueroa, O)
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(PC) Gil v. Yates et al Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRANCISCO J. GIL, 10 11 12 CASE NO. 1:09-cv-00552-AWI-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED v. JAMES A. YATES, et al., (Doc. 13) 13 Defendants. / 14 15 Plaintiff Francisco Gil (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action pursuant to 42 U.S.C. § 1983. On September 18, 2009, plaintiff filed a 17 motion seeking preliminary injunctive relief. 18 defendants to provide Plaintiff with medical care for his various medical ailments including 19 herniated discs, bone spurs, degenerative disc disease, joint disease and muscle spasms. Plaintiff 20 further states that he requires back and neck surgery, and requests that the Court appoint a specialist 21 or neurosurgeon to provide him with treatment. Plaintiff requests a court order commanding 22 The purpose of a preliminary injunction is to preserve the status quo if the balance of equities 23 so heavily favors the moving party that justice requires the court to intervene to secure the positions 24 until the merits of the action are ultimately determined. University of Texas v. Camenisch, 451 U.S. 25 390, 395 (1981). A preliminary injunction is available to a plaintiff who “demonstrates either (1) 26 a combination of probable success and the possibility of irreparable harm, or (2) that serious 27 questions are raised and the balance of hardship tips in its favor.” Arcamuzi v. Continental Air 28 Lines, Inc., 819 F. 2d 935, 937 (9th Cir. 1987). Under either approach the plaintiff “must 1 Dockets.Justia.com 1 demonstrate a significant threat of irreparable injury.” Id. Also, an injunction should not issue if the 2 plaintiff “shows no chance of success on the merits.” Id. At a bare minimum, the plaintiff “must 3 demonstrate a fair chance of success of the merits, or questions serious enough to require litigation.” 4 Id. 5 Federal courts are courts of limited jurisdiction, and as a preliminary matter, the court must 6 have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 7 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and 8 State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 9 1118, 1126 (9th Cir. 2006). If the court does not have an actual case or controversy before it, it has 10 no power to hear the matter in question. Id. Thus, “[a] federal court may issue an injunction [only] 11 if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may 12 not attempt to determine the rights of persons not before the court.” Zepeda v. United States 13 Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985). 14 In an order issued September 18, 2009, the court dismissed plaintiff’s complaint for failure 15 to comply with Federal Rule of Civil Procedure 8(a) and ordered plaintiff to file an amended 16 complaint within thirty days.1 At this juncture, the court does not yet have before it an actual case 17 or controversy. Further, assuming that plaintiff files an amended complaint that states cognizable 18 claims for relief under section 1983, until the complaint has been served on defendants and they have 19 appeared in this action, the court will not have jurisdiction over any of the defendants and may not 20 issue any orders mandating that they take certain action. Zepeda, 753 F.2d at 727. 21 The Court is mindful that Plaintiff alleges that he is in pain and requires medical treatment. 22 However, for the reasons articulated above, the Court must recommend that plaintiff’s motion for 23 preliminary injunctive relief, filed September 18, 2009, be DENIED, without prejudice, as 24 premature. 25 These Findings and Recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 27 1 28 By separate order, the Court has granted Plaintiff’s request for an extension of the deadline for filing his amended complaint. 2 1 days after being served with these Findings and Recommendations, plaintiff may file written 2 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 5 1153 (9th Cir. 1991). 6 Finally, with respect to Plaintiff’s request for a Court-appointed neurosurgeon or specialist 7 to provide him with medical care, the expenditure of public funds on behalf of an indigent litigant 8 is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) 9 (citations omitted). The in forma pauperis statute does not authorize the expenditure of public funds 10 for the purpose sought by Plaintiff, and his request must be DENIED. 11 12 13 IT IS SO ORDERED. Dated: 3b142a October 13, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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