IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 12, 2012
BHAJAN SINGH BARIANA, PLAINTIFF,
G. HARDY ACREE,
FINDINGS AND RECOMMENDATIONS
By order signed April 23, 2012, plaintiff's pro se complaint was dismissed and leave was granted to file an amended complaint that cured the defects noted in that order. Plaintiff was granted thirty days from the date of the order to file an amended complaint and was cautioned that failure to respond to the court's order in a timely manner may result in a recommendation that this action be dismissed. The thirty day period has expired, and plaintiff has not filed an amended complaint.
However, on April 24, 2012, plaintiff did file a motion for a preliminary injunction with this court. (Doc. No. 5.) "[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). "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, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). See also Center for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) ("After Winter, 'plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction."); Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth Circuit has also held that "[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)).*fn1
Here, plaintiff's complaint was dismissed with leave to amend and plaintiff has failed to file an amended complaint in the time provided. Accordingly, the undersigned finds that it is unlikely that plaintiff will succeed on the merits of the claims alleged in his complaint. See Hawthorne v. Mendoza-Power, No. 1:07-cv-01101-LJO-DLB PC, 2012 WL 1413581, at *1 (E.D. Cal. Apr. 23, 2012) (recommending denial of plaintiff's motion for preliminary injunction because the original complaint had been dismissed for failure to state a claim, there was no operative pleading before the court and therefore plaintiff had failed to demonstrate a likelihood of success on the merits). For the same reasons, the court finds that plaintiff has not raised serious questions with respect to the merits of his claims. Accordingly, the undersigned will recommend that plaintiff's motion for a preliminary injunction be denied.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's April 24, 2012 motion for a preliminary injunction (Doc. No. 5) be denied; and
2. This action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DAD:6 Ddad1\orders.pro se\bariana3381.fta.f&rs