(PC) Gil v. Yates et al, No. 1:2009cv00552 - Document 34 (E.D. Cal. 2010)

Court Description: ORDER Adopting Findings And Recommendations, ORDER Denying Motion For Preliminary Injunctive Relief, (Docs. # 13 , # 20 , & # 26 ), signed by Chief Judge Anthony W. Ishii on 9/27/2010. (Scrivner, E)
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(PC) Gil v. Yates et al Doc. 34 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 FRANCISCO GIL, 13 14 15 16 CASE NO. 1:09-cv-00552-AWI DLB PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS v. ORDER DENYING MOTION FOR PRELIMINARY INJUNCTIVE RELIEF JAMES A. YATES, et al., Defendants. (Docs. #13, #20, & #26) 17 18 / 19 Plaintiff Francisco Gil (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 20 action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On October 14, 2009, the Magistrate Judge filed a Findings and Recommendations that 23 recommended Plaintiff’s motion for a preliminary injunction be denied. 24 Recommendations was served on Plaintiff and contained notice to Plaintiff that any objections to the 25 Findings and Recommendations was to be filed within thirty days. Plaintiff filed an Objection to the 26 27 28 The Findings and Findings and Recommendations on November 18, 2009. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the Findings and 1 Dockets.Justia.com 1 Recommendations’s conclusion correct. The Findings and Recommendations rest its conclusion 2 on the fact that no operative complaint had been screened and found to state a claim. While at the 3 time the Findings and Recommendations were entered the Magistrate Judge had dismissed the 4 complaint, by the time Plaintiff filed his objections, Plaintiff had filed an amended complaint. The 5 court declines to find that a motion for a preliminary injunction can simply be denied because the 6 court has not yet done its statutory duty to screen the complaint pursuant to 28 U.S.C. § 1915A(a). 7 However, by March 2, 2010, the Magistrate Judge did screen the amended complaint and 8 found it stated a claim as to certain Defendants. The Magistrate Judge directed Plaintiff to either 9 inform the court that Plaintiff was willing to proceed on the claim the Magistrate Judge found 10 cognizable or file a second amended complaint. 11 amended complaint. Attached to the second amended complaint is a motion for a preliminary 12 injunction. The Magistrate Judge has not yet screened this second amended complaint. On March 18, 2010, Plaintiff filed a second 13 In the original motion for a preliminary injunction, Plaintiff sought a court order compelling 14 Defendants to perform their preexisting duties and appointing a neurosurgeon for Plaintiff’s medical 15 care. 16 provides that: “Prospective relief in any civil action with respect to prison conditions shall extend 17 no further than necessary to correct the violation of the Federal right of a particular plaintiff or 18 plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such 19 relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal 20 right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 21 U.S.C. § 3626(a)(1)(A). In addition, a “plaintiff must show that he has sustained or is immediately 22 in danger of sustaining some direct injury as the result of the challenged official conduct and the 23 injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” City 24 of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (internal quotations and citations omitted). When 25 a government agency is involved, it must “be granted ‘the widest latitude in the dispatch of its own 26 27 28 This civil rights complaint is governed by the Prison Litigation Reform Act. This Act internal affairs,’” see Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (quoting Rizzo v. Goode, 423 U.S. 362, 378-79 (1976)), and “[w]hen a state agency is involved, these considerations are, in anything, strengthened because of federalism concerns,” see Gomez, 255 F.3d at 1128. 2 1 “[A]ny injunctive relief awarded must avoid unnecessary disruption to the state agency’s ‘normal 2 course of proceeding.” Id. at 1128 (quoting O’Shea v. Littleton, 414 U.S. 488, 501 (1974)). 3 Plaintiff seeks broad preliminary injunctive relief. However, the only claim found 4 cognizable by the Magistrate Judge concerns Defendants Ortiz, Neubarth, and Kusher for actions 5 taken from 2003 to 2005. Thus, the court finds that it cannot grant Plaintiff the blanket injunctive 6 relief he seeks. 7 In addition, Defendants have never had the opportunity to oppose Plaintiff’s motion for 8 preliminary injunctive relief. Rule 65(a)(1) of the Federal Rules of Civil Procedure states that the 9 court may issue a preliminary injunction only on notice to the adverse party. Rule 65(b)(1) only 10 allows an exception to this rule if the Plaintiff has shown in an affidavit or a verified complaint that 11 immediate and irreparable injury, loss, or damage will result to the moving party before the adverse 12 party can be heard in opposition. Here, Plaintiff has not shown why a preliminary injunction should 13 be issued without even allowing Defendants to be heard on the motion. 14 The court recognizes that the second amended complaint, which has yet to be screened by 15 the Magistrate Judge, also requests a preliminary injunction. In the event the Magistrate Judge finds 16 any of the second amended complaint states a claim, Defendants should be ordered to respond to the 17 second amended complaint’s request for a preliminary injunction. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Findings and Recommendations, filed October 14, 2009, is adopted; and 20 2. Plaintiff’s motion for preliminary injunctive relief, filed on September 18, 2009, is 21 denied. 22 IT IS SO ORDERED. 23 24 Dated: 0m8i78 September 27, 2010 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28 3