(PC) Foust v. Ali ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:19-CV-2579-JAM-DMC-P 12 Plaintiff, 13 v. FINDNGS AND RECOMMENDATIONS 14 ALI, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 64, for an order directing 19 that Plaintiff be permitted regular access to the prison law library. The Court construes this filing 20 as a motion seeking preliminary injunctive relief. 21 The legal principles applicable to requests for injunctive relief, such as a 22 temporary restraining order or preliminary injunction, are well established. To prevail, the 23 moving party must show that irreparable injury is likely in the absence of an injunction. See 24 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 25 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 26 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 27 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 28 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 1 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 2 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 3 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 4 however, issue an order against individuals who are not parties to the action. See Zenith Radio 5 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 6 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 7 prison renders the request for injunctive relief moot, unless there is some evidence of an 8 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 9 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 10 The legal principles applicable to requests for injunctive relief, such as a 11 temporary restraining order or preliminary injunction, are well established. To prevail, the 12 moving party must show that irreparable injury is likely in the absence of an injunction. See 13 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 14 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 15 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 16 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 17 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 18 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 19 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 20 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 21 however, issue an order against individuals who are not parties to the action. See Zenith Radio 22 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 23 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 24 prison renders the request for injunctive relief moot, unless there is some evidence of an 25 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 26 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 27 / / / 28 / / / 1 Plaintiff seeks an order from this Court directing unspecified prison officials to 2 | provide him regular access to the law library at the California Medical Facility. See ECF No. 64. 3 | In support, Plaintiff states he is suffering from “head drama” and that his legal mail “needs to be 4 | open in front of me instead of being open before I get it.” Id. at 1. Plaintiff also complains of 5 | improperly handling of his mail, difficulties breathing in some way related to masks, and an 6 | interest in a “breathing machine.” See id. Beyond Plaintiff's one-page motion, Plaintiff's filing 7 | consists of a number of documents (82 pages) which are not referenced or explained in □□□□□□□□□□□ 8 | motion. Fatal to Plaintiff's motion, Plaintiff has not shown how he would suffer any irreparable 9 | injury absent regular law library access. 10 Based on the foregoing, the undersigned recommends that Plaintiff's motion, ECF 11 | No. 64, be construed as a motion for preliminary injunctive relief and, so construed, be denied. 12 These findings and recommendations are submitted to the United States District 13 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 14 | after being served with these findings and recommendations, any party may file written objections 15 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 16 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 17 | Yist, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: October 26, 2021 19 20 | Dated: October 26, 2021 1 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28