(PC) Avila v. Brown, No. 1:2017cv01328 - Document 14 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Motion for an Order to Show Cause for a Preliminary Injunction, and Emergency Motion, signed by Magistrate Judge Barbara A. McAuliffe on 4/17/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL AVILA, 11 12 13 Plaintiff, vs. JERRY BROWN, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:17-cv-01328-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTION FOR AN ORDER TO SHOW CAUSE FOR A PRELIMINARY INJUNCTION, AND EMERGENCY MOTION (ECF Nos. 10, 12) THIRTY-DAY DEADLINE 16 I. Introduction 17 Plaintiff Daniel Avila is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 20 Plaintiff initiated this action on October 3, 2017. (ECF No. 1.) Before the Court could 21 22 screen Plaintiff’s original complaint, he filed a first amended complaint on December 28, 2017. (ECF No. 10.) In screening Plaintiff’s first amended complaint, the Court determined that he 23 alleges his First Amendment rights were violated while he was housed at Kern Valley State 24 Prison (“KVSP”). An order screening the first amended complaint, and granting Plaintiff leave to 25 file a second amended complaint was issued concurrently with these findings and 26 recommendations. 27 Along with Plaintiff’s first amended complaint, he also filed a motion for emergency 28 relief. (ECF No. 10, at 6-9.) Further, on March 16, 2018, Plaintiff filed a motion for an order to 1 1 show cause for a preliminary injunction. (ECF No. 12.) The Court now addresses these pending 2 motions, below. 3 II. Discussion 4 In Plaintiff’s motions he seeks a preliminary injunction requiring prison officials to allow 5 him an opportunity to exchange his black ink pen fillers once per day, and allowing him to 6 possess all his paper-based legal materials. 7 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 8 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 9 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 10 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 11 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 12 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 13 omitted). 14 “[A] court has no power to adjudicate a personal claim or obligation unless it has 15 jurisdiction over the person of the defendant.” Zenith Radio Corp. v. Hazeltine Research, Inc., 16 395 U.S. 100, 110 (1969); SEC v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007). Similarly, the 17 pendency of this action does not give the Court jurisdiction over prison officials in general. 18 Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009); Mayfield v. United States, 599 19 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and 20 to the cognizable legal claims upon which this action is proceeding. Summers, 555 U.S. at 492- 21 93; Mayfield, 599 F.3d at 969. 22 In this case, in screening Plaintiff’s first amended complaint, the Court found no 23 cognizable claims, no defendant has been served, and no defendant has appeared. Thus, this 24 matter does not yet proceed on any cognizable claims. Further, the claim Plaintiff raises involves 25 First Amendment allegations against officials employed at KVSP. However, he has since been 26 transferred and is currently housed at California State Prison, Cocoran. The pendency of this 27 action does not give the Court jurisdiction over prison officials generally, and the Court lacks 28 jurisdiction to issue the relief Plaintiff seeks here. 2 1 III. 2 Accordingly, it is HEREBY RECOMMENDED that: 3 1. Plaintiff’s motion for emergency relief (ECF No. 10, at 6-9) be denied; and 4 2. Plaintiff’s motion for an order to show cause for a preliminary injunction (ECF No. 12) be denied. 5 6 Conclusion and Recommendations These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file 9 written objections with the Court. The document should be captioned “Objections to Magistrate 10 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 11 the specified time may result in the waiver of the “right to challenge the magistrate’s factual 12 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara April 17, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3