(PC) Denham v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL JOHN DENHAM, No. 1:19-cv-01176-DAD-GSA (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 STU SHERMAN, Warden, et al., PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 15 Defendants. (Doc. Nos. 21, 29) 16 17 18 Plaintiff Paul John Denham is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 30, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s motion for a temporary restraining order be denied. (Doc. No. 29.) 23 The findings and recommendations were served on plaintiff and contained notice that objections 24 were due within fourteen days of service. (Id. at 3.) After receiving an extension of time to do 25 so, plaintiff filed timely objections on May 4, 2020. (Doc. Nos. 30, 31, 32.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 28 including plaintiff’s objections, the court concludes that the findings and recommendations are wOASe 4.2 UV VEE EARLE SSA YUCCA he OY Ove 1 | supported by the record and proper analysis. 2 In his objections, plaintiff argues that the court should consider his motion for a temporary 3 | restraining order on the merits, given that his First Amended Complaint has been awaiting 4 | screening by the magistrate judge for more than five months. (Doc. No. 32 at 2.) He also argues 5 | that, irrespective of screening, the court can provide injunctive relief under the All Writs Act, 28 6 | U.S.C. § 1651, or use its inherent power to inquire about his allegations of unsafe dining hall 7 | conditions, violative of the Eighth Amendment, at his institution of confinement. (/d. at □□□□□ 8 However, plaintiff also noted that, as of March 16, 2020, defendants ceased using the 9 | dining hall that is the focus of plaintiff's allegations in order to promote social distancing in 10 || response to the COVID-19 pandemic. (Ud. at 6n.1.) As a result, the dining hall in question is not 11 | currently in use. Thus, even if the court could provide injunctive relief here, plaintiff has not 12 | shown that he “‘is likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. 13 | Nat. Res. Def: Council, Inc., 555 U.S. 7, 20 (2008). 14 Accordingly: 15 1. The findings and recommendations issued on March 30, 2020 (Doc. No. 29) are 16 adopted; 17 2. Plaintiff's motion for a temporary restraining order (Doc. No. 21) is denied 18 without prejudice to refiling; and 19 3. The matter is referred back to the assigned magistrate judge for screening of 20 plaintiffs first amended complaint, (Doc. No. 19), and for further proceedings. 21 | IT IS SOORDERED. me □ Dated: _May 12, 2020 YL A Dou 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28