(PC) Thomas v. Davey et al, No. 1:2016cv00925 - Document 19 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS Regading Plaintiff's 7 13 14 Motions for Emergency Preliminary Injunction and Motion for Order to Show Cause signed by Magistrate Judge Barbara A. McAuliffe on 01/26/2017. Referred to Judge Ishii; Objections to F&R due by 2/14/2017.(Flores, E)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD THOMAS, 12 13 14 Plaintiff, v. DAVE DAVEY, et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00925-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTIONS FOR EMERGENCY PRELIMINARY INJUNCTION AND MOTION FOR ORDER TO SHOW CAUSE (ECF Nos. 7, 13, 14) FOURTEEN-DAY DEADLINE 18 Plaintiff Edward Thomas (“Plaintiff”), a state prisoner proceeding pro se and in forma 19 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 27, 2016. Currently before 20 the Court are Plaintiff’s motions for preliminary injunction, filed on July 15, 2016, and October 26, 21 2016, and Plaintiff’s motion for the court to issue an order to show cause why a permanent injunction 22 should not be issued. (ECF Nos. 7, 13, 14). 23 I. 24 On October 24, 2016, the Court screened Plaintiff’s first amended complaint and dismissed it 25 with leave to amend within thirty (30) days. (ECF No. 12). On November 4 and November 18, 2016, 26 Plaintiff filed consecutive motions for reconsideration of the Court’s screening order by the district 27 judge. (ECF Nos. 16, 17). The motions for reconsideration are currently pending, and a second 28 amended complaint has not been filed. Background 1 1 II. Discussion 2 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 3 Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376 (2008) (citation omitted). 4 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, 5 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 6 equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). 7 An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 8 22 (citation omitted). 9 Federal courts are courts of limited jurisdiction and, in considering a request for injunctive 10 relief, the Court is bound by the requirement that as a preliminary matter, it have before it an actual 11 case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); 12 Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 13 471, 102 S.Ct. 752, 757-58 (1982). If the Court does not have an actual case or controversy before it, 14 it has no power to hear the matter in question. Lyons, 461 U.S. at 102; Valley Forge Christian Coll., 15 454 U.S. at 471. Thus, “[a] federal court may issue an injunction [only] if it has personal jurisdiction 16 over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the 17 rights of persons not before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 18 (9th Cir.1983); see Fed. R. Civ. P. 65(d) (listing persons bound by injunction). 19 In his initial motion for injunctive relief, Plaintiff requests that the Court order Defendant 20 Warden Dave Davey and any other officers, agents or person in active concern and participation with 21 defendant, his successor, agents, employees and all other persons working in concert with defendant to 22 reinstate Plaintiff’s single cell status and “permanently restrain said defendants from assigning any 23 further[r] or future inmates into the cell with Plaintiff.” (ECF No. 7 at p. 1). Plaintiff also requests an 24 order restraining or prohibiting defendants from “further and future acts of any form of ‘retaliations’ 25 and ‘reprisal’ (disciplinary or otherwise) against Plaintiff . . . resulting in any form of disciplinary 26 punishments and confiscation of Plaintiff’s real and personal property items (i.e. television, CD player, 27 ADA-Cassette players, CDs, cassette tapes, books, and legal documents.) or restrict Plaintiff from his 28 2 1 ‘A-I-A’ privilege group status . . . .” (ECF No. 7 at 2). Plaintiff’s subsequent motion for a preliminary 2 injunction seeks substantially similar relief. (ECF No. 14). 3 Plaintiff’s first amended complaint was dismissed with leave to amend, and a second amended 4 complaint has not been filed. Plaintiff also has filed motions for reconsideration of the Court’s 5 screening order dismissing the first amended complaint with leave to amend. As a result, at this stage 6 of the proceedings, the Court does not have before it an actual case or controversy. The Court also 7 does not have jurisdiction over the defendants in this action, as there has been determination that 8 Plaintiff has stated cognizable claims for relief and no service of any complaint has been ordered. 9 Thus, the Court does not have jurisdiction at this time to issue any injunctive relief. Until such time as 10 there is an operative complaint with cognizable claims for relief, any requests for preliminary 11 injunctive relief are premature. 12 III. Conclusion and Recommendation 13 For the reasons stated, IT IS HEREBY RECOMMENDED that Plaintiff’s motions for a 14 preliminary injunction, filed July 15 and October 26, 2016, and his related motion for an order to show 15 cause, filed on October 26, 2016, be DENIED. 16 These Findings and Recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) 18 days after being served with these Findings and Recommendations, the parties may file written 19 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendations.” The parties are advised that failure to file objections within the 21 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 22 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 23 1391, 1394 (9th Cir. 1991)). 24 25 26 27 IT IS SO ORDERED. Dated: /s/ Barbara January 26, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28 3