(PC) Gray v. Johnson et al, No. 1:2013cv01473 - Document 201 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 192 Motion for Preliminary Injunctive Relief be Denied, without Prejudice signed by Magistrate Judge Gary S. Austin on 04/13/2017. Referred to Judge Drozd; Objections to F&R due by 5/1/2017.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, 12 Plaintiff, 13 14 vs. ROMERO, et al., 15 Defendants. 1:13-cv-01473-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED, WITHOUT PREJUDICE (ECF No. 192.) OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS 16 17 18 19 20 I. BACKGROUND Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. § 1983. 22 September 12, 2013. (ECF No. 1.) Plaintiff filed the Complaint commencing this action on 23 Plaintiff is presently incarcerated at the Central California Women’s Facility (CCWF) 24 in Chowchilla, California, in the custody of the California Department of Corrections and 25 Rehabilitation (CDCR), where the events at issue in this action occurred. 26 On March 28, 2017, the court granted defendant Rebel’s motion to dismiss the claims 27 against him in the Fourth Amended Complaint with leave to amend, and defendant Ziomek’s 28 motion for judgment on the pleadings with leave to amend. (ECF No. 184.) Plaintiff was 1 1 granted thirty days in which to file a Fifth Amended Complaint. (Id.) To date, Plaintiff has not 2 filed the Fifth Amended Complaint. 3 On April 5, 2017, Plaintiff filed a motion for preliminary injunctive relief, requesting a 4 court order requiring CCWF to provide her with surgery and post-operative rehabilitation 5 treatment within ninety days. (ECF No. 192.) In the alternative, Plaintiff requests the court to 6 require CDCR to release her from custody on lifetime parole within ninety days so she can 7 obtain needed medical care outside of CCWF. Plaintiff’s motion for preliminary injunctive relief is now before the court. 8 9 II. MOTION FOR PRELIMINARY INJUNCTIVE RELIEF 10 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 11 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376 (2008) 12 (citation omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely 13 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 14 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 15 public interest.” Id. at 20 (citations omitted). An injunction may only be awarded upon a clear 16 showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted). 17 Federal courts are courts of limited jurisdiction and, in considering a request for 18 injunctive relief, the court is bound by the requirement that as a preliminary matter, it have 19 before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 20 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church 21 and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982). If the court does not have an 22 actual case or controversy before it, it has no power to hear the matter in question. Lyons, 461 23 U.S. at 102; Valley Forge Christian Coll., 454 U.S. at 471. Thus, “[a] federal court may issue 24 an injunction [only] if it has personal jurisdiction over the parties and subject matter 25 jurisdiction over the claim; it may not attempt to determine the rights of persons not before the 26 court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1983); see Fed. 27 R. Civ. P. 65(d) (listing persons bound by injunction). 28 2 1 Because Plaintiff has not filed the Fifth Amended Complaint, there is presently no 2 complaint on file for which this case can proceed, and therefore there is no case or controversy 3 before the court. For these reasons, Plaintiff’s motion for preliminary injunctive relief must be 4 denied for lack of jurisdiction. Plaintiff is not precluded from renewing the motion at a later 5 stage of the proceedings.1 6 III. 7 CONCLUSION AND RECOMMENDATIONS The court finds that Plaintiff’s motion for preliminary injunctive relief should be 8 dismissed for lack of jurisdiction. 9 Plaintiff’s motion for preliminary injunctive relief, filed on April 5, 2017, be DENIED for lack 10 Therefore, it is HEREBY RECOMMENDED that of jurisdiction. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 13 fourteen (14) days after being served with these Findings and Recommendations, any party 14 may file written objections with the court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 20 21 IT IS SO ORDERED. Dated: April 13, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 After the Fifth Amended Complaint is filed, the court shall screen it in due course to determine if it states any cognizable claims. 28 U.S.C. § 1915A. 3

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