(PC) Hollis v. Downing, et al, No. 2:2009cv03431 - Document 20 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/25/10 ORDERING that 8 motion for expedited screening is DENIED; RECOMMENDING that 10 MOTION for injunctive relief be denied. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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(PC) Hollis v. Downing, et al Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARVIN GLENN HOLLIS, 11 12 13 14 15 16 Plaintiff, No. 2:09-cv-3431 FCD KJN P vs. M.S. DOWNING, et al., ORDER AND Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with 17 a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is plaintiff’s January 22, 18 2010 motion for a temporary restraining order or preliminary injunctive relief in which he alleges 19 defendants deny him food as well as harass him by confiscating legal papers related to his active 20 cases. On February 3, 2010, the Office of the Attorney General (Attorney General) was served 21 with plaintiff’s motion for preliminary injunctive relief and ordered to respond. The Attorney 22 General responded on February 12, 2010. 23 The legal principles applicable to a request for injunctive relief are well 24 established. To prevail, the moving party must show either a likelihood of success on the merits 25 and the possibility of irreparable injury, or that serious questions are raised and the balance of 26 hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 1 Dockets.Justia.com 1 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 2 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal 3 point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under 4 any formulation of the test, plaintiff must demonstrate that there exists a significant threat of 5 irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the 6 court need not reach the issue of likelihood of success on the merits. Id. 7 In cases brought by prisoners involving conditions of confinement, any 8 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 9 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 10 11 correct the harm.” 18 U.S.C. § 3626(a)(2). Initially, the principal purpose of preliminary injunctive relief is to preserve the 12 court's power to render a meaningful decision after a trial on the merits. See C. Wright & A. 13 Miller, 11 Federal Practice and Procedure, §2947 (1973). In addition to demonstrating that he 14 will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must 15 show a “fair chance of success on the merits” of his claim. Sports Form, Inc. v. United Press 16 International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of Intern. 17 Ass’n of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979). Implicit in this 18 required showing is that the relief awarded is only temporary and there will be a full hearing on 19 the merits of the claims raised in the injunction when the action is brought to trial. 20 Plaintiff filed the instant motion on January 22, 2010, alleging ongoing incidents 21 at High Desert State Prison (HDSP). However, also on January 22, 2010, plaintiff filed a notice 22 indicating that on January 20, 2010, he had been transferred to a different prison, California 23 Correctional Institution. Because plaintiff is no longer subject to actions by the named 24 defendants, his motion for injunctive relief is moot. These claims do not implicate this court's 25 jurisdiction in a way that might justify application of the All Writs Act to reach officials at 26 2 1 California Correctional Instituion who are not named in the underlying litigation.1 Zenith Radio 2 Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969). For this reason, plaintiff’s motion for 3 preliminary injunction should be denied. 4 On January 22, 2010, plaintiff also filed a motion for expedited screening of the 5 instant action. Review of court records reveals that this action was screened by order filed 6 February 3, 2010. Thus, plaintiff’s motion is moot and will be denied. 7 8 IT IS HEREBY ORDERED that plaintiff’s January 22, 2010 motion for expedited screening (Dkt. No. 8) is denied; and 9 10 IT IS HEREBY RECOMMENDED that plaintiff’s January 22, 2010 motion for injunctive relief (Dkt No. 10) be denied. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 13 one days after being served with these findings and recommendations, plaintiff may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 16 //// 17 //// 18 //// 19 //// 20 //// 21 //// 22 1 23 24 25 26 The fact that injunctive relief is sought from one not a party to litigation does not automatically preclude the court from acting. The All Writs Act, 28 U.S.C. § 1651(a) permits the court to issue writs “necessary or appropriate in aid of their jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is meant to aid the court in the exercise and preservation of its jurisdiction. Plum Creek Lumber Company v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The United States Supreme Court has authorized the use of the All Writs Act in appropriate circumstances against persons or entities not a party to the underlying litigation. United States v. New York Telephone Co., 434 U.S. 159, 174 (1977). 3 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: February 25, 2010 4 5 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 holl3431.pi 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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