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Eric Wheeler v. K. Aliceson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 8, 2013

ERIC WHEELER,
PLAINTIFF,
v.
K. ALICESON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (ECF No. 16) CASE TO REMAIN OPEN

Plaintiff Eric Wheeler, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on May 25, 2012 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.

On January 9, 2013, Findings and Recommendations were filed in which the Magistrate Judge recommended that Plaintiff's Motion for Order of Preliminary Injunction and Temporary Restraining Order (Mot. Inj., ECF No. 13), and Addendum to Motion for Order of Preliminary Injunction and Temporary Restraining Order (Adden. Mot. Inj., ECF No. 14.), be DENIED WITHOUT PREJUDICE by the District Judge. (F&R Den. Prelim. Inj. and TRO, ECF No. 16.) The parties were notified that objection, if any, was due within fourteen days.

On January 25, 2013, Plaintiff filed Objections to the Magistrate Judge Findings and Recommendations. (Obj. to F&R Den. Prelim. Inj. and TRO, ECF No. 18.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations, as corrected hereunder, to be supported by the record and by proper analysis.

Plaintiff asserts, and the Court agrees, that the Findings and Recommendations incorrectly state Plaintiff sought injunctive relief against unnamed "PVSP" officials whereas Plaintiff actually sought such relief against unnamed "CDCR" officials.*fn1

Accordingly, any reference in the Findings and Recommendations to unnamed "PVSP" officials is hereby corrected to unnamed "CDCR" officials. Regardless of that error, It remains that Plaintiff may not seek relief against unnamed parties for the reasons stated in the Findings and Recommendations.

In his Objections, Plaintiff re-argues mental health indifference, failure to protect, due process, and retaliation allegations previously considered by the Court and found insufficient. He again suggests he is entitled to injunctive relief. The First Amended Complaint screened by the Court stated no cognizable claim. Plaintiff has not shown a denial of access to the EOP mental health program in violation of his federal rights. His allegations as to potential future harassment and retaliation are speculative. His mere re-argument is not a substantive objection. He raises no material issue of law or fact under the Findings and Recommendations as corrected above.

Plaintiff additionally argues his Objections and a proposed Second Amended Complaint filed January 22, 2013 identify other federal violations. Argument based upon allegations not before the Court when it issued the Findings and Recommendations is not a basis for objection thereto.

Plaintiff's Objections lack merit and fail to raise any material issue of law or fact under the Findings and Recommendations as corrected above.

Accordingly, IT IS HEREBY ORDERED that:

1. The Court adopts the Findings and Recommendations filed January 9, 2013, Denying Without Prejudice Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (ECF No. 16), as corrected above, in full; and

2. The Court Clerk is directed that this case shall remain open.

IT IS SO ORDERED.


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