United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court are plaintiff's motions for injunctive
relief filed December 19, 2016, and March 15, 2017. (ECF Nos.
25, 33.) For the reasons stated herein, the undersigned
recommends that these motions be denied.
Standard for Injunctive Relief
order to prevail on a motion for injunctive relief, the
moving party must demonstrate that (1) it is likely to
succeed on the merits; (2) it is likely to suffer irreparable
harm in the absence of preliminary relief; (3) the balance of
equities tips in its favor; and (4) that the relief sought is
in the public interest. Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit
has held that injunctive relief may issue, even if the moving
party cannot show a likelihood of success on the merits, if
“‘serious questions going to the merits' and
a balance of hardships that tips sharply towards the
plaintiff can support issuance of a preliminary injunction,
so long as the plaintiff also shows that there is a
likelihood of irreparable injury and that the injunction is
in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
2011). Under either formulation of the principles,
preliminary injunctive relief should be denied if the
probability of success on the merits is low. Johnson v.
California State Bd. of Accountancy, 72 F.3d 1427, 1430
(9th Cir. 1995) (“‘[E]ven if the balance of
hardships tips decidedly in favor of the moving party, it
must be shown as an irreducible minimum that there is a fair
chance of success on the merits.'” (quoting
Martin v. Int'l Olympic Comm., 740 F.2d 670, 675
(9th Cir. 1984))).
pending motions for injunctive relief are virtually
identical, except that the motion filed in March 2017
contains more exhibits. In both pending motions, plaintiff
alleges that he is housed at the California Health Care
Facility (“CHCF”) in Stockton, California. In the
pending motions, plaintiff alleges that he was wrongly
classified with an “R” suffix. Plaintiff alleges
that he has been attacked by inmates on four occasions as a
result of prison officials giving inmates “falsified
documents” stating that plaintiff is a sex offender.
Plaintiff appears to claim that after he complained about
prison officials distributing this false information, prison
officials retaliated against him by falsely charging him with
theft of state property and being in possession of a weapon.
plaintiff filed the first pending motion in December 2016, he
was housed at CHCF. On February 13, 2017, plaintiff filed a
notice of change of address stating that he had been
transferred to California State Prison-Lancaster
(“CSP-LAC”), where he is currently incarcerated.
From the exhibits attached to the pending motion for
injunctive relief filed in March 2017, it appears that
plaintiff may have been transferred to CSP-LAC in January
2017. In any event, plaintiff does not allege, nor do the
exhibits attached to the pending motions suggest, that he has
been attacked or experienced retaliation since being housed
at CSP-LAC. The exhibits suggest that the alleged attacks and
retaliation occurred at prisons other than CHCF and CSP-LAC.
motions for injunctive relief should be denied because he has
not demonstrated the likelihood of irreparable harm in the
absence of preliminary relief. As discussed above, plaintiff
has not demonstrated that any of the alleged attacks or
retaliation have occurred since his transfer to CSP-LAC,
where he is currently housed. To the extent plaintiff is
requesting the removal of the “R” suffix
classification, plaintiff has not demonstrated a likelihood
of success on the merits as to this claim. Plaintiff does not
have an operative complaint on file and plaintiffs pending
motions do not demonstrate a likelihood of success as to this
February 27, 2017, the undersigned granted plaintiff
forty-five days to file a second amended complaint. The
undersigned will screen the second amended complaint when it
HEREBY RECOMMENDED that plaintiffs motions for injunctive
relief filed December 19, 2016, and March 15, 2017 (ECF Nos.
25, 33) be denied.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections ...