United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S
MOTIONS FOR COPIES AND GRANTING PLAINTIFF EXTENSION OF TIME
TO COMPLY WITH THE COURT'S MAY 10, 2017, ORDER [ECF NOS.
92, 93, 94]
time this action was filed, Plaintiff Gregory Ell Shehee was
a civil detainee proceeding pro se in a civil rights action
pursuant to 42 U.S.C. § 1983.
2, 2017 and June 5, 2017, Plaintiff filed three separate
motions for copies. Although it is difficult to decipher, in
his motions Plaintiff contends that prison officials are
retaliating against him by failing to provide him copying
services, access to his legal documents, failure to process
grievances, and placement in administrative segregation,
denying him access to the court. The Court construes
Plaintiff's motions as requests for preliminary
preliminary injunction should not issue unless necessary to
prevent threatened injury that would impair the court's
ability to grant effective relief in a pending action.
“A preliminary injunction … is not a preliminary
adjudication on the merits but rather a device for preserving
the status quo and preventing the irreparable loss of right
before judgment.” Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A
preliminary injunction represents the exercise of a far
reaching power not to be indulged except in a case clearly
warranting it. Dymo Indus. V. Tapeprinter, Inc., 326
F.2d 141, 143 (9th Cir. 1964). “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 v.
Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In
cases brought by prisoners involving conditions of
confinement, any preliminary injunction “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 the
harm.” 18 U.S.C. § 3626(a)(2).
have a fundamental constitutional right of access to the
courts. Lewis v. Casey, 518 U.S. 343, 346 (1996);
Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.
2011); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir.
2009). However, to state a viable claim for relief, Plaintiff
must show that he suffered an actual injury, which requires
“actual prejudice to contemplated or existing
litigation.” Nevada Dep't of Corr. v.
Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing
Lewis, 518 U.S. at 348) (internal quotation marks
omitted); Christopher v. Harbury, 536 U.S. 403, 415
(2002); Lewis, 518 U.S. at 351; Phillips,
588 F.3d at 655.
prisoner cannot submit conclusory declarations of injury by
claiming his access to the courts has been impeded. Thus, it
is not enough for an inmate to show some sort of denial of
access without further elaboration. Plaintiff must
demonstrate “actual injury” from the denial
and/or delay of access.
Supreme Court has described the “actual injury”
[T]he inmate … must go one step further and
demonstrate that the alleged shortcomings in the library or
legal assistance program hindered his efforts to pursue a
legal claim. He might show, for example, that a complaint he
prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the
prison's legal assistance facilities, he could not have
known. Or that he suffered arguably actionable harm that he
wished to bring before the courts, but was so stymied by
inadequacies of the law library that he was unable even to
file a complaint.
Lewis, 518 U.S. at 351.
instance, Plaintiff has failed to allege or demonstrate
“actual injury” by the alleged misconduct by
prison officials. Thus, Plaintiff has failed to demonstrate
that in the absence of preliminary injunctive relief he is
likely to suffer actual injury in prosecuting his case.
“Speculative injury does not constitute irreparable
injury sufficient to warrant granting a preliminary
injunction.” Caribbean Marine Servs. Co. v.
Baldridge, 844 F.2d 668, 674 (9th Cir. 1988), citing
Goldies Bookstore, Inc. v. Superior Court, 739 F.2d
466, 472 (9th Cir. 1984). Plaintiff has provided no basis for
this court to interfere with the jail's administration of
its access to photocopy services.
this action is proceeding against Defendants for
Plaintiff's claim of excessive force, not denial of
access to the courts and/or retaliation. Plaintiff seeks to
enjoin prison officials, including some named Defendants for
alleged actions outside of the scope of his excessive force
claim, and Plaintiff has neither demonstrated a likelihood of
success on the merits nor the threat of irreparable injury as
to any Defendant. Plaintiff also seeks injunctive relief
against individuals who are not named Defendants in this
action. This Court is unable to issue an order against
individuals who are not parties to a suit pending before it.
See Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 112 (1969). Accordingly, Plaintiff's
requests for a preliminary injunction must be denied.
on the foregoing, it is HEREBY RECOMMENDED that
Plaintiff's motions for a preliminary injunction be
Findings and Recommendation will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
(21) days after being served with this Findings and
Recommendation, the parties may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and Recommendation.”
The parties are advised that failure to file objections
within the specified time may result in the waiver of ...