(PC) Marrero et al v. Zaragoza et al, No. 1:2010cv00509 - Document 16 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 3 Plaintiff's Motion for a Preliminary Injunction be DENIED re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Michael J. Seng on 12/23/2010. Referred to Judge O'Neill. Objections to F&R due by 1/31/2011. (Jessen, A)
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(PC) Marrero et al v. Zaragoza et al Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWIN MARRERO, 11 12 CASE NO. Plaintiff, 1:10-cv-00509-LJO-MJS (PC) FINDGINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION v. 13 J. ZARAGOZA, et al., (ECF No. 3) 14 15 16 Defendants. OBJECTION DUE WITHIN THIRTY DAYS / 17 18 19 Plaintiff Edwin Marrero (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents 20 of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff filed his Complaint on March 21 22, 2010. (ECF No. 1.) No other parties have appeared in the action. 22 23 Plaintiff filed a Motion for Preliminary and or Temporary Injunction with his Complaint. In his motion, Plaintiff seeks a court order demanding that federal prisons stop 24 selling combination locks in their commissaries. He contends that the locks are frequently 25 26 being used as assault weapons and causing life-threatening injuries. 27 1 Dockets.Justia.com 1 2 3 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 (2008) (citation omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to 4 5 6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 7 the public interest.” Id. at 374 (citations omitted). An injunction may only be awarded upon 8 a clear showing that the plaintiff is entitled to relief. Id. at 376 (citation omitted). 9 10 Because Plaintiff seeks to have Defendants change the status quo, he is actually seeking a mandatory injunction. See Meghrig v. KFC Western, 516 U.S. 479, 484 (1996). 11 12 13 The factors for consideration of a mandatory injunction are the same as for a preliminary injunction, but a mandatory injunction is subject to higher scrutiny. Dahl v. HEM 14 Pharmaceuticals Corp., 7 F.3d 1339, 1403 (9th Cir. 1993). “When a mandatory injunction 15 is requested, the district court should deny such relief unless the facts and law clearly favor 16 the moving party.” Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th 17 Cir. 1994). 18 Plaintiff’s claim that the locks are being used as weapons and causing life19 20 threatening injuries does not meet the legal prerequisite for a mandatory injunction at this 21 stage in the proceedings. To succeed on the instant motion, Plaintiff must establish that 22 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 23 absence of preliminary relief, that the balance of equities tips in his favor, and that an 24 injunction is in the public interest. Plaintiff has not met any of these criteria. 25 First, Plaintiff has not demonstrated that he is likely to succeed on the merits of his 26 27 case. The fact that otherwise useful instruments are being misused as weapons does not 2 1 2 3 establish a likelihood that Plaintiff will succeed in efforts to have their sale banned. Second, Plaintiff does not state that he will suffer irreparable harm if the locks continue to be sold. In fact, he does not even indicate that he personally has suffered any harm 4 5 6 because of the sale of the locks. Finally, Plaintiff does not address the balance of equities or the public interest components at all. Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s Motion 7 8 for a Preliminary Injunction be DENIED. 9 10 The Court recognizes that Plaintiff’s yet-to-be-screened Complaint also requests permanent injunctive relief halting the sale of combination locks in federal prisons. In the 11 12 13 event the Court finds that the Complaint states a cognizable claim, the Court will revisit Plaintiff’s request for such injunctive relief as outlined in the Complaint. 14 These Findings and Recommendations will be submitted to the United States 15 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 16 636(b)(l). 17 Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document 18 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 19 20 The parties are advised that failure to file objections within the specified time may waive 21 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 22 1991). See also Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 23 IT IS SO ORDERED. 24 25 26 Dated: ci4d6 December 23, 2010 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 3