(PC) Bullard v. St. Andra et al, No. 1:2017cv00328 - Document 54 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 53 Motion for Preliminary Injunction; Objections, if any, Due within Fourteen Days signed by Magistrate Judge Jeremy D. Peterson on 10/19/2018. Referred to Judge Lawrence J. O'Neill.(Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EFREN DANIELLE BULLARD, 11 Case No. 1:17-cv-00328-LJO-JDP Plaintiff, 12 v. 13 BENSON, et al., 14 Defendants. FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION ECF No. 53 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 I. 19 RELIEF REQUESTED Plaintiff Efren Danielle Bullard is proceeding without counsel in this civil rights action 20 brought under 42 U.S.C. § 1983. On October 15, 2018, plaintiff filed a proposed order1 21 requiring defendants Benson, Jane Doe, and David to show cause why a preliminary injunction 22 should not be issued in this case to enjoin: 23 the defendants, their successors in office, agents and employees and all other persons acting in concert and participation with them, from, 1. From harassing plaintiff as alle[]ged in the complaint. 2. From sexually assaulting plaintiff. 3. Retaliating against plaintiff for using the gre[i]vance system. 4. Attempting to have 24 25 26 Plaintiff states that he filed “supporting affidavits of plaintiff and [a] memorandum of law” with his proposed order, ECF. No. 53, at 1, but these documents were not received by the clerk of court. 1 1 27 28 1 inmates/third parties, actors harassing or otherwise retaliating against plaintiff for using the gre[i]vance system. . . . [5.] [C]oming within 100 yards of plaintiff. 2 3 4 ECF. No. 53. II. LEGAL STANDARD 5 A federal district court may issue injunctive relief only if the court has personal 6 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 7 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party 8 officially, and is required to take action in that capacity, only upon service of summons or other 9 authority-asserting measure stating the time within which the party served must appear to 10 defend”). The court may not attempt to determine the rights of persons not before it. See 11 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 12 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (requiring 13 injunctive relief to be “narrowly tailored to give only the relief to which plaintiffs are entitled”). 14 Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 15 action,” their “officers, agents, servants, employees, and attorneys,” and “other persons who are 16 in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). Requests for prospective 17 relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, 18 which requires that the court find that the “relief [sought] is narrowly drawn, extends no further 19 than necessary to correct the violation of the Federal Right, and is the least intrusive means 20 necessary to correct the violation of the Federal Right.” 21 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 22 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 23 the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip 24 v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 25 555 U.S. 7, 20 (2008)). “[P]laintiffs must establish that irreparable harm is likely, not just 26 possible, in order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 27 632 F.3d 1127, 1131 (9th Cir. 2011). In addition to establishing irreparable harm, the injunctive 28 relief sought must be related to the claims brought in the complaint. See Pac. Radiation 2 1 Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015) (“When a plaintiff 2 seeks injunctive relief based on claims not pled in the complaint, the court does not have the 3 authority to issue an injunction.”). 4 5 III. ANALYSIS As a preliminary matter, plaintiff frames his motion as a proposed order to show cause 6 why a preliminary injunction and temporary restraining order should not issue. The court 7 construes plaintiff’s filing as a request for a preliminary injunction under Federal Rule of Civil 8 Procedure 65. 9 The court will recommend that plaintiff’s motion for injunctive relief be denied because 10 plaintiff has not established any of the four factors outlined in Glossip v. Gross, 135 S. Ct. 2726, 11 2736-37 (2015). Plaintiff’s proposed order, which is a single page in length, does not provide 12 any justifications for why a preliminary injunction should issue. In it, plaintiff states that he 13 filed “supporting affidavits of plaintiff and [a] memorandum of law,” ECF. No. 53, at 1, but 14 these documents were not received by the clerk of court. Should plaintiff wish to refile his 15 motion for a preliminary injunction with the proper supporting documents, he may do so. 16 17 18 IV. FINDINGS AND RECOMMENDATIONS IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive relief, ECF No. 53, be DENIED. 19 These findings and recommendations will be submitted to the U.S. district judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 21 days of service of these findings and recommendations, plaintiff may file written objections 22 with the court. If plaintiff files such objections, he should do so in a document captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 24 failure to file objections within the specified time may result in the waiver of rights on appeal. 25 See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 26 F.2d 1391, 1394 (9th Cir. 1991)). 27 28 IT IS SO ORDERED. 3 1 2 3 Dated: October 19, 2018 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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