(PC) Richard Villapando v. California Department of Corrections and Rehabilitation (CDCR), No. 1:2014cv00823 - Document 45 (E.D. Cal. 2015)

Court Description: ORDER ADOPTING 25 FINDINGS AND RECOMMENDATIONS IN FULL and ORDER DENYING 23 Plaintiff's Motion for Temporary Restraining Order signed by District Judge Lawrence J. O'Neill on 5/11/2015. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 RICHARD VILLAPANDO, 13 Plaintiff, 14 15 vs. CDCR, 16 Defendant. ) ) ) ) ) ) ) ) ) ) 1:14cv00823 LJO DLB PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER (Document 25) 17 Plaintiff Richard Villapando (“Plaintiff”) is a California state prison inmate proceeding 18 19 20 21 pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 8, 2014, Plaintiff filed a motion for temporary restraining order. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 23 On November 14, 2014, the Magistrate Judge issued Findings and Recommendations that Plaintiff’s motion be denied. The Findings and Recommendations were served on Plaintiff and 24 25 26 27 28 contained notice that any objections to the Findings and Recommendations were to be filed within thirty (30) days. Plaintiff filed objections on December 19, 2014. /// /// 1 2 3 4 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, including Plaintiff’s objections, the Court finds that the Findings and Recommendations are supported by the record and by proper analysis. 5 Plaintiff’s motion seeks an order enjoining Defendant Beard from enforcing NCR 13-01, 6 7 8 9 and/or from making threats to take or destroy his religious property. Insofar as Plaintiff’s motion relates to the enforcement of NCR 13-01, the regulation is no longer in effect. Plaintiff’s First Amended Complaint was dismissed with leave to amend on May 7, 2015, to permit Plaintiff to 10 cite the relevant regulation. Therefore, at this time, there is no operative pleading and this action 11 no longer focuses on NCR 13-01. 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth Island Institute, 12 129 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). 13 Plaintiff also requests that the Court enjoin Defendant, “his successors in office, his 14 officials, agents and employees, and all other persons acting in concern and participation with 15 Defendant” from retaliatory threats. However, the Court does not have jurisdiction over anyone 16 17 18 other than Defendant, it is does not appear that he was involved in the actions complained of. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct. 1562 (1969); S.E.C. v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007). 19 Finally, the Magistrate Judge correctly noted that this action is not about retaliatory 20 21 22 23 threats or searches, and thus the issues are beyond the scope of available equitable relief. See e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998) (“[The] triad of injury in fact, causation, and redressability constitutes the core of Article III’s case-or-controversy 24 requirement, and the party invoking federal jurisdiction bears the burden of establishing its 25 existence.”) (citation omitted); American Civil Liberties Union of Nevada v. Masto, 670 F.3d 26 1046, 1061-62 (9th Cir. 2012) (“[F]ederal courts may adjudicate only actual, ongoing cases or 27 controversies.”) (citation and internal quotation marks omitted). 28 /// 1 2 Accordingly, IT IS HEREBY ORDERED that: 1. 3 4 The Findings and Recommendations, filed November 14, 2014, are ADOPTED in full; and 2. Plaintiff’s motion for injunctive relief (Document 23) is DENIED. 5 6 IT IS SO ORDERED. 7 Dated: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 May 11, 2015 /s/ Lawrence J. O’Neill UNITED STATES DISTRICT JUDGE

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