(PC) Denham v. Sherman et al, No. 1:2019cv01176 - Document 29 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff" Motion for Temporary Restraining Order be denied signed by Magistrate Judge Gary S. Austin on 3/30/2020. Referred to Judge Dale A. Drozd. Objections to F&R"s due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL JOHN DENHAM, 12 Plaintiff, 13 14 vs. 1:19-cv-01176-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER BE DENIED STU SHERMAN, et al., 15 Defendants. (ECF No. 21.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 16 17 18 19 20 21 I. BACKGROUND 22 Paul John Denham (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On August 29, 2019, Plaintiff 24 filed the Complaint commencing this action. (ECF No. 1.) On October 17, 2019, the court 25 screened the Complaint under 28 U.S.C. § 1915A and issued an order dismissing the Complaint 26 for violation of Rule 8(a) of the Federal Rules of Civil Procedure, with leave to amend. (ECF 27 No. 13.) On November 18, 2019, Plaintiff filed the First Amended Complaint, which awaits the 28 requisite screening by the court under 28 U.S.C § 1915. (ECF No. 19.) 1 1 On November 18, 2019, Plaintiff filed a motion for a temporary restraining order, which 2 is now before the court. (ECF No. 21.) 3 II. TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION 4 A temporary restraining order is an extraordinary measure of relief that a federal court 5 may impose without notice to the adverse party if, in an affidavit or verified complaint, the 6 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 7 movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The 8 standard for issuing a temporary restraining order is essentially the same as that for issuing a 9 preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 10 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary 11 injunctions is “substantially identical”). 12 “A plaintiff seeking a preliminary injunction must establish [ (1) ] that he is likely to 13 succeed on the merits, [ (2) ] that he is likely to suffer irreparable harm in the absence of 14 preliminary relief, [ (3) ] that the balance of equities tips in his favor, and [ (4) ] that an injunction 15 is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) 16 (citations omitted). The Ninth Circuit has held that “‘serious questions going to the merits’ and 17 a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary 18 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 19 that the injunction is in the public interest,” even if the moving party cannot show that he is likely 20 to succeed on the merits. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 21 Cir. 2011). Under either formulation of the principles, preliminary injunctive relief should be 22 denied if the probability of success on the merits is low. 23 Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (“‘[E]ven if the balance of hardships tips 24 decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is 25 a fair chance of success on the merits.’” (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670, 26 675 (9th Cir. 1984))). Johnson v. Cal. State Bd. of 27 A district court has no authority to grant relief in the form of a temporary restraining order 28 or preliminary injunction where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon 2 1 Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential element of the 2 jurisdiction of a district . . . court, without which the court is powerless to proceed to an 3 adjudication.” (alteration in original) (citation and internal quotation omitted)); Paccar Int’l, Inc. 4 v. Commercial Bank of Kuwait, S.A.K., 757 F.2d 1058, 1061 (9th Cir. 1985) (vacating district 5 court’s order granting preliminary injunction for lack of personal jurisdiction). 6 Discussion 7 Plaintiff requests “a preliminary injunction enjoining defendants . . . cease use of the 8 SATF Facility E dining hall for the feeding of prisoners; and, (b) to cease the storage of prisoner 9 food trays directly under a damaged ceiling at the SATF Facility E dining hall.” (ECF No. 21 at 10 12.) 11 In this case, there is no complaint on file in which the court has found cognizable claims. 12 Therefore, at this stage of the proceedings the court cannot opine that Plaintiff is likely to succeed 13 on the merits of his claims. Furthermore, no defendants have yet appeared in this action and the 14 court does not have jurisdiction to order injunctive relief which would require directing 15 individuals who are not before the court to take action. Zepeda v. United States Immigration & 16 Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction 17 if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it 18 may not attempt to determine the rights of persons not before the court.”). Therefore, Plaintiff’s motion must be denied at this juncture. Plaintiff is not precluded 19 20 from renewing the motion at a later stage of the proceedings. 21 III. 22 23 CONCLUSION AND RECOMMENDATIONS Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for preliminary injunctive relief, filed on November 18, 2019, be DENIED, without prejudice. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 26 (14) days after the date of service of these findings and recommendations, Plaintiff may file 27 written objections with the court. 28 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file Such a document should be captioned “Objections to 3 1 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 (9th Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: March 30, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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