(PC)Richard A. Evans v. Shittu ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. EVANS, ) Case No.: 1:20-cv-01317-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) REGARDING PLAINTIFF’S REQUESTS FOR EMERGENCY RELIEF 14 ADEKUNIE SHITTU, et al., ) ) (ECF Nos. 8, 9) 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Richard A. Evans is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 On September 18, 2020, the undersigned issued Findings and Recommendations 21 recommending that Plaintiff’s motion to proceed in forma pauperis be denied because Plaintiff has 22 suffered three or more strikes under 28 U.S.C. § 1915(g). (ECF No. 7.) 23 On September 25, 2020, and October 1, 2020, Plaintiff filed separate requests for judicial 24 notice. (ECF Nos. 8, 9.) Plaintiff contends that he was referred for surgery on his varicose veins in 25 March 2020, but has not yet received the surgery. (Id.) The Court construes Plaintiff’s requests for 26 judicial as requests for injunctive relief. 27 /// 28 /// 1 A temporary restraining order is an extraordinary measure of relief that a federal court may 2 impose without notice to the adverse party if, in an affidavit or verified complaint, the movant “clearly 3 show[s] that immediate and irreparable injury, loss, or damage will result to the movant before the 4 adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The standard for issuing a 5 temporary restraining order is essentially the same as that for issuing a preliminary injunction. 6 Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that 7 the analysis for temporary restraining orders and preliminary injunctions is “substantially identical”). 8 “A plaintiff seeking a preliminary injunction must establish [ (1) ] that he is likely to succeed on the 9 merits, [ (2) ] that he is likely to suffer irreparable harm in the absence of preliminary relief, [ (3) ] that 10 the balance of equities tips in his favor, and [ (4) ] that an injunction is in the public interest.” Winter 11 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). The Ninth Circuit has held 12 that “ ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the 13 plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there 14 is a likelihood of irreparable injury and that the injunction is in the public interest,” even if the moving 15 party cannot show that he is likely to succeed on the merits. Alliance for the Wild Rockies v. Cottrell, 16 632 F.3d 1127, 1135 (9th Cir. 2011). Under either formulation of the principles, preliminary injunctive 17 relief should be denied if the probability of success on the merits is low. Johnson v. Cal. State Bd. of 18 Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (“ ‘[E]ven if the balance of hardships tips decidedly 19 in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of 20 success on the merits.’ ” (quoting Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984))). 21 The pendency of this action does not give the Court jurisdiction over prison officials in 22 general. Summers v. Earth Island Institute, 555 U.S. 488, 491–93 (2009); Mayfield v. United States, 23 599 F.3d 964, 969 (9th Cir.2010). The Court's jurisdiction is limited to the parties in this action and to 24 the viable legal claims upon which this action is proceeding. Summers, 555 U.S. at 491–93; Mayfield, 25 599 F.3d at 969. The undersigned has recommended that the Court deny in forma pauperis, and 26 Plaintiff pay the $400.00 filing fee in full before this case proceed. Therefore, the Court lacks 27 jurisdiction over prison officials not parties to a civil action. Further, Plaintiff has not demonstrated 28 wOAOUe UV VEG SEAR MUO, AI Ne VI 1 || that he is at risk of suffering immediate and irreparable harm will result absent an order in this case. 2 || Accordingly, Plaintiff's requests for injunctive relief should be denied. 3 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s requests for 4 || injunctive relief be denied. 5 This Findings and Recommendation will be submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 7 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 8 ||the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 9 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 10 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 11 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 IT IS SO ORDERED. A (Fe 14 |! Dated: _ October 6, 2020 OF 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28