(PC)Calloway v. Youssee ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, No. 1:21-cv-01450-NONE-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND 13 v. MOTION TO STAY FINDINGS AND RECOMMENDATIONS 14 YOUSSEE, et al., (Doc. No. 10) 15 Defendants. ORDER ADOPTING FINDINGS AND 16 RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF’S MOTION TO 17 PROCEED IN FORMA PAUPERIS 18 (Doc. Nos. 2, 7) 19 TWENTY-ONE (21) DAY DEADLINE 20 21 Plaintiff Jamisi Jermaine Calloway is a state prisoner proceeding pro se in this civil rights 22 action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 29, 2021. (Doc. 23 No. 1.) 24 On October 4, 2021, the assigned magistrate judge issued findings and recommendations 25 recommending that plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 26 U.S.C. § 1915(g) and that plaintiff be required to pay the $402.00 filing fee in full in order to 27 proceed with this action. (Doc. No. 7.) Those findings and recommendations were served on 28 plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) 1 days after service. (Id. at 3–4.) Plaintiff timely filed objections to the findings and 2 recommendations on October 20, 2021. (Doc. No. 9.) The court notes that plaintiff states therein 3 that he has included approximately 150 exhibits in support of his objections, but no exhibits were 4 attached to the document filed with the court. (Doc. No. 9.) 5 Plaintiff appears to be aware that those exhibits were not attached to his objections, 6 because on October 22, 2021 he filed a motion for preliminary injunction and to stay the findings 7 and recommendations. (Doc. No. 10.) Plaintiff argues in that motion that prison officials are 8 obstructing his access to courts by refusing to make copies of the exhibits in support of his 9 objections. Plaintiff therefore requests that the court issue a preliminary injunction and temporary 10 restraining order directing prison officials to stop hindering plaintiff in making adequate copies in 11 support of his exhibits. Plaintiff further requests that the court review his exhibits in camera and 12 to stay the objections—which appears to be a request to stay a decision on the pending findings 13 and recommendations—until the court has received the exhibits in support of his objections. (Id.) 14 After a review of plaintiff’s summary of the exhibits included with the objections, and a 15 review of the motion for preliminary injunction, the court does not find that the above-referenced 16 exhibits would alter the court’s analysis. Furthermore, the court finds that a stay of the findings 17 and recommendations is not necessary and that the court lacks jurisdiction to order a preliminary 18 injunction over prison staff at this time. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 19 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). 20 Turning to the objections, plaintiff argues that his application to proceed in forma 21 pauperis should be granted because he continued to be in imminent danger of serious physical 22 injury even after his transfer to California Health Care Facility (“CHCF”). As noted in the 23 findings and recommendations, plaintiff brings this action against 48 defendants, who all appear 24 to be employees of Wasco State Prison or Kern Valley State Prison. (Doc. No. 1.) The 25 magistrate judge reasoned that, to the extent plaintiff alleges that at the time the complaint was 26 filed he faced an imminent danger of serious physical injury at CHCF, plaintiff did not allege that 27 this danger satisfies the “nexus” test outlined in Pettus v. Morgenthau, 554 F.3d 293, 297–98 28 ///// 1 | (2d Cir. 2009).! This test allows defendants who have suffered three prior striker dismissals of 2 | civil actions filed by them to proceed in forma pauperis only if: (1) the alleged imminent danger 3 | was “fairly traceable” to the unlawful conduct asserted in the complaint; and (2) a favorable 4 | judicial outcome would redress the danger. Id. 5 Plaintiffs objections do not provide any support for the proposition that a favorable 6 | judicial outcome in this action, against defendants employed at Wasco State Prison and Kern 7 | Valley State Prison, would provide any redress for danger he might face at CHCF. 8 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 9 | de novo review of the case. Having carefully reviewed the entire file, including plaintiffs 10 | objections, the court concludes that the magistrate judge’s findings and recommendations are 11 | supported by the record and proper analysis. 12 Accordingly, 13 1. Plaintiff's motion for a preliminary injunction and to stay the findings and 14 recommendations, (Doc. No. 10), is denied; 15 2. The findings and recommendations issued on October 4, 2021, (Doc. No. 7), are 16 adopted in full; 17 2. In accordance with 28 U.S.C. § 1915(g), plaintiff's application to proceed in forma 18 pauperis, (Doc. No. 2), is denied; and 19 3. Within twenty-one (21) days following the date of service of this order, plaintiff 20 shall pay the $402.00 filing fee in full to proceed with this action. If plaintiff fails 21 to pay the filing fee within the specified time, this action will be dismissed without 22 further notice. 23 | IT IS SO ORDERED. me □ Dated: _ November 8, 2021 aL Al 4 7 ae 25 UNITED STATES DISTRICT JUDGE 26 | Although the Ninth Circuit has not directly addressed this question, numerous district courts 27 || have found that Pettus provides the controlling standard. See McClellan v. Kern Cty. Sheriff's Office, No. 1:10-CV-0386-LJO-MJS, 2015 WL 5732077, at *1 & n.1 (E.D. Cal. Sept. 28, 2015) 28 | (collecting cases).