(PC) Dillingham v. Garcia ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DILLINGHAM, Case No. 1:18-cv-00579-NONE-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. EMERGENCY MOTION FOR ADMINISTRATIVE RELIEF BE DENIED 14 F. GARCIA, OBJECTIONS, IF ANY, DUE WITHIN 15 Defendant. FOURTEEN DAYS (ECF NO. 142) 16 ORDER GRANTING PLAINTIFF THIRTY- 17 DAY EXTENSION OF TIME TO RESPOND TO ORDER TO SHOW CAUSE 18 ORDER DIRECTING CLERK TO SEND 19 PLAINTIFF COPY OF ORDER TO SHOW CAUSE (ECF NO. 141) 20 21 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 23 On January 27, 2021, the Court issued an order to show cause, directing Plaintiff to “file a 24 written response to this order explaining why he should not be sanctioned, up to and including 25 dismissal of this case, for failing to appear at the second settlement conference.” (ECF No. 141, 26 p. 3). 27 On February 19, 2021, Plaintiff filed an emergency motion for administrative relief. (ECF 28 No. 142). In the motion Plaintiff alleges that he received a copy of the order to show cause, but 1 cannot respond because he no longer has a copy of it. Given this representation, the Court will 2 direct the Clerk of Court to send Plaintiff another copy of the order to show cause and grant 3 Plaintiff an additional thirty days to respond. If Plaintiff again fails to respond, the Court will 4 recommend sanctions, which may include dismissal of this case. 5 As to Plaintiff’s request for injunctive relief, as the request is not related to the claim 6 proceeding in this case, and as Plaintiff submitted no evidence that he is being retaliated against 7 because he is prosecuting this case, the Court will recommend that it be denied. 8 I. LEGAL STANDARDS 9 A federal district court may issue emergency injunctive relief only if it has personal 10 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy Bros., 11 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a party 12 officially, and is required to take action in that capacity, only upon service of summons or other 13 authority-asserting measure stating the time within which the party served must appear to 14 defend.”). The Court may not attempt to determine the rights of persons not before it. See, e.g., 15 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 16 719, 727-28 (9th Cir. 1983); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (injunctive 17 relief must be “narrowly tailored to give only the relief to which plaintiffs are entitled”). Under 18 Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the action,” 19 their “officers, agents, servants, employees, and attorneys,” and “other persons who are in active 20 concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). “When a plaintiff seeks injunctive 21 relief based on claims not pled in the complaint, the court does not have the authority to issue an 22 injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 23 2015). 24 Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the 25 Prison Litigation Reform Act, which requires that the Court find that the “relief [sought] is 26 narrowly drawn, extends no further than necessary to correct the violation of the Federal Right, 27 and is the least intrusive means necessary to correct the violation of the Federal Right.” 28 Furthermore, “[a] plaintiff seeking a preliminary injunction must establish that he is likely 1 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 2 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 3 Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural Res. Def. Council, 4 Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish that irreparable harm is 5 likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild 6 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 7 II. ANALYSIS 8 Given Plaintiff’s repeated requests for emergency relief based on allegations unrelated to 9 the claims in this case, Plaintiff was previously warned that “[a]ll future requests for injunctive 10 relief that plaintiff files in this matter will be summarily denied if they are clearly unrelated to this 11 case.” (ECF No. 129, p. 2). Despite this warning Plaintiff filed the present request for injunctive 12 relief. The request does not appear to be directed at the defendant in this case, it appears to have 13 no relation to the claim proceeding in this case, and most of the allegations of retaliation in the 14 request are based on other cases Plaintiff filed. Moreover, Plaintiff submitted no evidence that he 15 is being retaliated against because he is prosecuting this action. Accordingly, the Court will 16 recommend that Plaintiff’s request be denied. 17 III. RECOMMENDATIONS AND ORDER 18 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that 19 Plaintiff’s emergency motion for administrative relief (ECF No. 142) be DENIED. 20 These findings and recommendations are submitted to the United States district judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 22 (14) days after being served with these findings and recommendations, any party may file written 23 objections with the court. Such a document should be captioned “Objections to Magistrate 24 Judge's Findings and Recommendations.” Any reply to the objections shall be served and filed 25 within seven (7) days after service of the objections. The parties are advised that failure to file 26 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 27 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 28 (9th Cir. 1991)). 1 Additionally, IT IS ORDERED that: 2 1. Plaintiff has thirty days from the date of service of this order to respond to the 3 order to show cause dated January 27, 2021 (ECF No. 141); and 4 2. The Clerk of Court is directed to send Plaintiff a copy of the order to show cause 5 dated January 27, 2021 CECF No. 141); and 6 3. Failure to respond to the order to show cause may result in sanctions including 7 dismissal of this case. 8 9 IT IS SO ORDERED. 10 | Dated: __February 23, 2021 [sf ey ll UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28