(PC) Hernandez v. Thomas, No. 2:2017cv01803 - Document 53 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/30/2018 RECOMMENDING 44 Motion for Injunctive Relief be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Hernandez v. Thomas Doc. 53 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY HERNANDEZ, 12 13 14 15 No. 2:17-CV-1803-KJM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS THOMAS, Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief (Doc. 44). 19 Specifically, plaintiff seeks an order directing “Madera County Jail admin.” to provide him with 20 copy services and legal supplies. 21 The legal principles applicable to requests for injunctive relief, such as a 22 temporary restraining order or preliminary injunction, are well established. To prevail, the 23 moving party must show that irreparable injury is likely in the absence of an injunction. See 24 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 25 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 26 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 27 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 28 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 1 Dockets.Justia.com 1 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 2 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 3 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 4 however, issue an order against individuals who are not parties to the action. See Zenith Radio 5 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 6 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 7 prison renders the request for injunctive relief moot, unless there is some evidence of an 8 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 9 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 10 In this case, the court finds injunctive relief is not appropriate. First, to the extent 11 defendant Thomas is not included among those individuals plaintiff refers to in his motion as 12 “Madera County Jail admin.,” the court is unable to issue an order directing conduct by non- 13 parties. See Zenith Radio Corp., 395 U.S. at 112. Second, plaintiff has not established he is 14 likely to suffer irreparable harm absent the requested order. In particular, plaintiff has not 15 explained how his alleged lack of access to copy services or legal supplies results in any harm, let 16 alone harm that is irreparable. According to plaintiff, he is not being provided blank paper or 17 copy services in order to make required copies of his legal documents, necessitating him to make 18 copies by hand. Plaintiff’s own allegations indicate he is able to cure any harm being caused. As 19 such, the harm cannot be said to be irreparable. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 2 Based on the foregoing, the undersigned recommends that plaintiff’s motion for injunctive relief (Doc. 44) be denied. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written objections 6 with the court. Responses to objections shall be filed within 14 days after service of objections. 7 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 8 Ylst,951 F.2d 1153 (9th Cir. 1991). 9 10 11 Dated: November 30, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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