(PC) Colbert v. Chavez et al, No. 1:2010cv00250 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Injunctice Relief, filed January 18, 2011, be DENIED; re 14 MOTION for TEMPORARY RESTRAINING ORDER filed by George K. Colbert ; referred to Judge Ishii,signed by Magistrate Judge Gerald B. Cohn on 7/30/2011. Objections to F&R due by 9/6/2011 (Martin-Gill, S)
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(PC) Colbert v. Chavez et al Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GEORGE K. COLBERT, 10 Plaintiff, 11 12 CASE NO. 1:10-cv-00250-AWI-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING REQUEST FOR INJUNCTIVE RELIEF v. P. CHAVEZ, et al., 13 (Doc. 14) Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS / 14 15 I. 16 Plaintiff George K. Colbert (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s claims arise from events 18 that occurred while Plaintiff was at the California Correctional Institute at Tehachapi, California. 19 (Doc. 1). Plaintiff is currently housed at California State Prison, Sacramento, in Represa, California. 20 (Doc. 13). On January 18, 2011, Plaintiff filed a motion for injunctive relief to provide emergency 21 medical treatment to prevent Plaintiff from becoming paralyzed. (Doc. 14). Procedural History 22 23 II. 24 “A preliminary injunction is an extraordinary remedy never awarded as a matter of Preliminary Injunction Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 25 right.” 26 (2008)(citation omitted). “A plaintiff seeking a preliminary injunction must establish that 27 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 28 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 1 Dockets.Justia.com 1 in the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded 2 upon a clear showing that the plaintiff is entitled to relief. 3 omitted)(emphasis added). The Ninth Circuit has made clear that “[T]o the extent that our 4 cases have suggested a lesser standard, they are no longer controlling, or even viable.” 5 McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010), quoting Am. Trucking 6 Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party 7 has the burden of proof on each element of the test. Environmental Council of Sacramento 8 v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). Id. at 376 (citation 9 ‘A federal court may issue an injunction if it has personal jurisdiction over the parties and 10 subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not 11 before the court.’ Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda 12 v. U.S. INS, 753 F.2d 719, 727 (9th Cir. 1985). The claims in this action arise from Plaintiff’s past 13 conditions of confinement at the California Correctional Institution in Tehachapi and the court does 14 not have jurisdiction in this action over prison officials at California State Prison, Sacramento. Thus, 15 the court cannot issue an order remedying Plaintiff’s current conditions of confinement there. Price 16 v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). 17 Plaintiff has not met his burden as the moving party. “[A] preliminary injunction is 18 an extraordinary and drastic remedy, one that should not be granted unless the movant, by 19 a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 20 972 (1997) (quotations and citations omitted) (emphasis in original). 21 preliminary injunction, such as that sought by plaintiff in the instant motion, “is subject to 22 heightened scrutiny and should not be issued unless the facts and the law clearly favor the 23 moving party.” Dahl v. Hem Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). As 24 the moving party, it is Plaintiff who bears the burden. Plaintiff’s vague and conclusory 25 allegations in his motion for injunctive relief does not meet Plaintiff’s burden to prevail on a motion 26 for preliminary injunctive relief. 27 /// 28 /// 2 A mandatory 1 III. 2 3 Conclusion and Reccomendations Therefore, the court HEREBY RECOMMENDS that Plaintiff's motion for injunctive relief, filed January 18, 2011, be DENIED. 4 These Findings and Recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 6 days after being served with these Findings and Recommendations, plaintiff may file written 7 objections with the court. The document should be captioned “Objections to Magistrate Judge's 8 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 9 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir.1991). 11 12 IT IS SO ORDERED. 13 14 Dated: 0jh02o July 30, 2011 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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