The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION BE DENIED DOCKET NO. 67 OBJECTIONS DUE: 30 DAYS
Plaintiff Matthew Cramer is a state prisoner proceeding in forma pauperis and pro se with an action for damages and other relief concerning alleged civil rights violations pursuant to 42 U.S.C. § 1983. Plaintiff's claim arises out of a theft incident at a Target store on March 3, 2008, to which Plaintiff apparently pled "no contest." See Motion for Preliminary Injunction, Docket No. 67, at 2:23. In his complaint, Plaintiff asserted that his civil rights were violated under Section 1983 due to the conduct of the Target employees who questioned him regarding the theft and the responding officer who arrested him.*fn1
On December 9, 2008, Plaintiff's complaint was dismissed, and he was granted thirty (30) days leave to amend. See Order Dismissing Complaint, Docket No. 5.
On February 17, 2009, Plaintiff filed a First Amended Complaint ("FAC"). The FAC was again screened pursuant to 28 U.S.C. § 1915A(a). Magistrate Judge Sandra M. Snyder issued Findings and Recommendations concluding that Plaintiff stated a cognizable claim against Defendants Heller, Yant, Officer Barrios ("Barrios"), and Defendant Doe (Target supervisor) for a "Deliberately Indifferent Delay or Deprivation of Medical Care." The Court recommended that service be deemed appropriate with regard to these individuals. Magistrate Judge Snyder recommended that Plaintiff's claims for wrongful arrest, detention, accusation, or conviction be dismissed without leave to amend. On June 8, 2009, the Findings and Recommendations were adopted by District Judge Oliver W. Wanger. On October 10, 2009, the Court issued an order determining that service was also appropriate on "Clevon Wheaton,"*fn2 who was previously designated as "John Doe," and who is apparently the manager of the Target store where Plaintiff was arrested. See Order Determining Service Is Appropriate, Docket No. 24.
The core allegations of Plaintiff's complaint center on what occurred outside the Target store after Plaintiff was approached by two Target store "asset protection" employees, Heller and Yant. Heller and Yant apparently confronted Plaintiff because of Plaintiff's theft inside the store, and detained him in a manner allegedly resulting in injury. Plaintiff asserts that Barrios, who was allegedly on the scene at the time, witnessed Plaintiff being injured and understood that Plaintiff was seriously hurt. Plaintiff contends that he asked Barrios to take him to the hospital. Plaintiff avers that Barrios left him at the Target store and did not return for approximately two (2) hours. It was only then that Plaintiff was taken to the hospital where his broken clavicle was diagnosed and treated.
On March 26, 2010, Plaintiff filed a "Motion for Preliminary Injunction Ordering Target Corporation et al. to Preserve All Video Surveillance."*fn3 In his Motion, Plaintiff requests that the Court issue an order directing "Target Defendants et. al." to preserve any and all surveillance videos or documents from March 2, 2008, through March 5, 2008. See Plaintiff's Motion (Mot.) at 2:2-3.
On April 15, 2010, Defendants Heller and Wheatly filed an opposition to Plaintiff's Motion for a Preliminary Injunction. On April 26, 2010, Plaintiff filed a reply to Defendants' opposition. In their opposition to Plaintiff's motion, Defendants Heller and Wheatly argue the motion is moot because all video surveillance footage of the day of the incident was provided to Plaintiff through his attorney, Jim Richards. Defendant's Opposition (Opp.) at 3:1-4; Declaration of Eric Heller ("Heller Decl.") at ¶ 5. Defendants assert that no other video footage exists that pertains to plaintiff from the relevant time period. Defendant's Opp. at 3:19-20; see Heller Decl. at ¶ 5 (stating three video surveillance files of Plaintiff at the Target store on March 2, 2008, and March 3, 2008, were preserved and produced to all parties in the case). Plaintiff maintains that this is untrue and that there must be surveillance video of the events that occurred outside the store and after he was returned to the store for "interrogation," but that he has not been provided with that footage.
Federal Rule of Civil Procedure 65 permits the issuance of a preliminary injunction to preserve the positions of the parties until a full trial can be conducted. LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1158 (9th Cir. 2006) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed. 2d 175 (1981)). In all cases, the burden of persuasion is on the party seeking injunctive relief. West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th Cir. 1982).
A plaintiff seeking a preliminary injunction must establish that: (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008).
As an initial matter, Defendant Yant has not yet been served with the FAC and the Court has no jurisdiction to enjoin a defendant not yet served or before the court. Zepeda v. U. S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1984). Accordingly, the ...