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Kanda v. Walker

January 5, 2010

ROMESH KANDA, PLAINTIFF,
v.
JAMES WALKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's August 10, 2009, motion for a preliminary injunction. Plaintiff, who is Hindu, alleges that he is being denied a diet in accordance with his religious beliefs in violation of the First Amendment. He does not proceed pursuant to RLUIPA, 42 U.S.C. § 2000cc, et seq. In his motion for injunctive relief, plaintiff seeks an order directing defendants to provide him with his religious diet.

On September 4, 2009, the court granted defendants until September 22, 2009, to file a response to plaintiff's motion for injunctive relief. Although defendants had not yet been served, the court ordered service of the September 4, 2009, order, plaintiff's complaint and motion on the Supervising Deputy Attorney General. Defendants did not respond to this order.

Accordingly, on October 23, 2009, the undersigned recommended that plaintiff's unopposed motion for injunctive relief be granted.

On November 12, 2009, defendants filed objections to the findings and recommendations. Defendant stated that no opposition was filed due to reasons related to the state budget crisis. On December 1, 2009, the court vacated the findings and recommendations and construed defendants' objections as an opposition to plaintiff's motion. Plaintiff was granted twenty-one days to file a response to defendants' opposition. Twenty-one days passed and plaintiff did not respond.

For the following reasons, the court recommends that plaintiff's motion be denied.

II. Discussion

A. Notice to Defendants

At the outset, the undersigned finds that defendants received notice of plaintiff's motion by way of the September 4, 2009, order, court file document # 11, and the motion itself which were served on defendant Walker and defense counsel. See Fed. R. Civ. P. 65 (court may issue preliminary injunction only on notice to the adverse party). See also Corrigan Dispatch v. Casa Guzman, 569 F.2d 300, 302 (5th Cir. 1978): "It is not grounds for reversal that the trial court's interlocutory order was issued prior to the time that appellant was made a party by substitute service of process. Rule 65(a) does not require service of process. The Rule does require notice to the adverse party. The sufficiency of written and actual notice is a matter for the trial court's discretion." (Emphasis added). Also Diamond Crystal Brands Inc. v. Wallace, 531 F. Supp. 2d 1366, 1370-71 (N.D. Ga. 2008).

Defendants do not dispute that they received adequate notice.

B. Legal Standard for Injunctive Relief

"The proper legal standard for preliminary injunctive relief requires a party to demonstrate 'that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008).

In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2).

C. Relief Sought

The undersigned must first clarify the precise diet plaintiff seeks. Plaintiff, who is incarcerated at California State Prison-Sacramento (CSP-Sac), alleges that he is an Orthodox Hindu. Complaint, p. 3. In the complaint, plaintiff alleges that his religion requires that he not eat any food that comes into any contact with meat. Id. Plaintiff alleges that defendants have denied ...


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