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James Cato, Jr v. T. Avila

October 24, 2012

JAMES CATO, JR.,
PLAINTIFF,
v.
T. AVILA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS FOR DENIAL OF MOTIONS FOR INJUNCTIVE RELIEF (ECF Nos. 58, 59, 60, 62, 72, & 75) OBJECTIONS DUE WITHIN FOURTEEN DAYS

Plaintiff James Cato, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed his initial complaint on May 5, 2010, alleging violations of his Eighth Amendment right to be free from excessive force. (ECF No. 1.) The Court screened Plaintiff's Complaint, found that it stated a cognizable claim, and ordered service. (ECF Nos. 11, 14, & 15.) This action is proceeding against Defendants Avila, Kavanaugh, Dumont, Rodriguez, Patrick, England, Bueno, Patterson, and Johnson for excessive use of force in violation of the Eighth Amendment. (Id.)

Plaintiff has the following motions pending before the Court:

1. motion regarding Plaintiff's legal property (ECF No. 58);

2. motion requesting the Court direct prison officials to return Plaintiff's legal materials (ECF No. 59);

3. motion for an immediate transfer to another institution (ECF No. 60);

4. motion for law library access (ECF No. 62);

5. motion for an immediate transfer (ECF No. 72); and

6. motion for law library use (ECF No. 75).

Plaintiff's motions all fall within the category of requests for injunctive relief. Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Res. Defense Council, 555 U.S. 7, 22, 129 S. Ct. 365, 376 (2008). "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." Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).

"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations omitted) (emphasis in original). A party seeking a preliminary injunction simply cannot prevail when that motion is unsupported by evidence. With respect to motions for preliminary injunctive relief or a temporary restraining order, the Prison Litigation Reform Act ("PLRA") provides that: [i]n any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief 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 that harm. 18 U.S.C. § 3626(a)(2).

Plaintiff requests orders for: return of his legal property (ECF Nos. 58, 59), transfer to another institution (ECF Nos. 60, 72), and access to the Court's legal library (ECF Nos. 62, 75).

Plaintiff was housed at Pleasant Valley State Prison when he initiated this action (ECF No. 1), the underlying events occurred at California State Prison-Corcoran (id.), and Plaintiff was recently ...


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