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Barry Louis Lamon v. Derral G. Adams


January 7, 2011


(Docs. 53, 54)


Barry Louis Lamon ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on September 21, 2007, and is proceeding on Plaintiff's second amended complaint filed on April 8, 2009. (Docs. 1, 21, 30.). This action is proceeding on Plaintiff's second amended complaint for claims stemming from events at California State Prison in Corcoran ("CSP-Corcoran") for First Amendment retaliation, excessive force in violation of the Eighth Amendment and violating Plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment. (Docs. 21, 30.).

On August 20, 2010, and on August 25, 2010, Plaintiff filed duplicative motions*fn1 seeking an order of protection. (Docs. 53, 54). In Plaintiff's motion for preliminary injunctive relief, he states that defendant Hanson and "numerous other L4 kitchen staff and the [correctional officers] of [Plaintiff's] assigned housing unit . . . were conspiring and retaliating against [Plaintiff] via a broad pattern of harassments [sic] including but not limited to sadistically reducing the quantity, quality and safety of [Plaintiff's] kosher diet and often tainting [Plaintiff's] food with pain and discomfort causing chemicals." (Doc. 53, pp. 2-3; Doc. 54, pp. 2-3 ). Moreover Plaintiff asserts that prison officials are "maliciously denying [Plaintiff] access and services from the law library and forcing [Plaintiff] to send [his] documents through other inmates . . . and burglarizing and censoring . . . correspondence to attorneys, elected officials, legal aid groups and the courts . . . ." (Doc. 53, p. 3; Doc. 54 p. 3.). Specifically on August 13, 2010, correctional officer Tomlin tainted Plaintiff's evening meal which made him "violently ill" and caused Plaintiff to suffer from diarrhea, head-pain and an acute allergic reaction and on August 14, 2010, correctional officers Morrison, Tran and C. Frazier served Plaintiff with half of the correct portion of food. (Doc. 53, p. 3; Doc. 54 p. 3.). Plaintiff also alleges that correctional officers Lawton, Tran and Morrison "destroyed" Plaintiff's files by confiscating and placing files in twenty brown paper bags where he was able to later have limited access to said files. (Doc. 53, pp. 5-6;Doc. 54 pp. 5-6.). Ultimately, Plaintiff requests this court to grant "fifteen (15) additional days extension of time to file any objections, motions or responses in this case. . . . [and to] contact the Corcoran prison litigation coordinators office and instruct them to have 4B facility staff to issue [Plaintiff's] legal files." (Doc. 53, p. 7;Doc. 54 p. 7.).

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). "A plaintiff seeking a preliminary injunction must establish 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." Id. at 374 (citations omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376 (citation omitted) (emphasis added). Federal courts are courts of limited jurisdiction and in considering a request for preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). Furthermore, the Court must have personal jurisdiction over the parties in order to issue an injunction against any individual or entity and the Court may not enjoin individuals who are not yet served or not before the court. Zepeda v. United States I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

Plaintiff's conclusory allegations of a conspiracy is insufficient to demonstrate a likelihood to succeed on the merits. See Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (conclusory allegations are insufficient to withstand a motion to dismiss). Moreover, Plaintiff has made no showing that he is being prevented from accessing specific legal documents that he has immediate need for at this stage in the litigation. As the allegations in Plaintiff's motions for injunctive relief suggests a remedy by enjoining individuals that are not a part of this action, the Court notes that it does not have jurisdiction to grant injunctive relief by enjoining individuals that are not parties to this action. See Zepeda v. United States I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

Accordingly, it is recommended that Plaintiff's motions for preliminary injunctive relief, filed on August 20, 2010, and on August 25, 2010, be DENIED, with prejudice. Aditionally, Plaintiff's request for automatic fifteen day extensions to any future deadlines should be denied.*fn2

It is ordered that this finding and recommendation be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within THIRTY (30) DAYS after being served with the finding and recommendation, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Finding and Recommendation." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).



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