(PC) Vovos v. Martinez ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS VOVOS, No. 2:21-CV-0837-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. MARTINEZ, 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 request for injunctive relief, ECF No. 29. 19 The legal principles applicable to requests for injunctive relief, such as a 20 temporary restraining order or preliminary injunction, are well established. To prevail, the 21 moving party must show that irreparable injury is likely in the absence of an injunction. See 22 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 23 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 24 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 25 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 26 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 27 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 28 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 1 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 2 however, issue an order against individuals who are not parties to the action. See Zenith Radio 3 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 4 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 5 prison renders the request for injunctive relief moot, unless there is some evidence of an 6 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 7 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 8 Plaintiff requests two forms of injunctive relief. See ECF No. 29, pg. 1. First, 9 Plaintiff requests access to the law library at Mule Creek State Prison A-yard. See id. at 1-2. 10 Second, Plaintiff requests assistance for his learning disability he claims impairs his reading and 11 writing abilities. See id. 12 Plaintiff filed his complaint against Defendant Martinez on May 7, 2021. See ECF 13 No. 1. The Court screened Plaintiff’s complaint and held that his claim against Martinez should 14 proceed. See ECF No. 17. Here, Plaintiff states that “ever since [he] filed this complaint [he] has 15 gone through a nightmare” and has been “denied access to the law library, legal material, writing 16 supplies, and assistance” and was also “denied ADA help.” See ECF No. 29, pg. 1. Plaintiff 17 further alleges that although he was officially granted ADA help, in reality, the ADA help is 18 being denied. See id. In addition to the ADA help, Plaintiff states that he has “a chrono from 19 CDCR” for his learning disability, but “[his] needs are not being met.” See id. 20 The Winter test requires the party moving for injunctive relief to demonstrate a 21 likelihood of success on the merits of the case. Here, Plaintiff has failed to demonstrate that he is 22 likely to succeed on the merits of his original complaint. Plaintiff suggests that his lack of access 23 to legal resources and lack of reading and writing assistance makes it more difficult for him to 24 successfully advocate for himself. See ECF No. 29, pg. 1. This general assertion loosely 25 connects Plaintiff’s request for injunctive relief to his pending case. However, Plaintiff’s request 26 for injunctive relief offers no evidence that he is likely to succeed on the merits of the case. 27 Plaintiff does not indicate that the granting of injunctive relief will increase his access to evidence 28 regarding his claim, nor does Plaintiff submit any other evidence to indicate that his claim is 1 | likely to succeed. Thus, Plaintiff has not demonstrated that he is likely to succeed on the merits 2 | of his case. 3 The Winter test also requires Plaintiff to demonstrate he is likely to suffer 4 || irreparable harm in the absence of an injunction. Here, Plaintiff states that because he is denied 5 || help with reading and writing that he has gone through a “nightmare.” See ECF No. 29, pg. 1. 6 | Plaintiff claims that due to the denial of help, he “had to have [his family] tell [him] how to 7 || write/spell this letter while [he was] on the phone with them.” See id. Plaintiff has alleged that, 8 | without injunctive relief, he is subjected to a great inconvenience, but this inconvenience amounts 9 || to increased difficulty or delays, not a harm which is irreparable. 10 Based on the foregoing, the undersigned recommends that Plaintiff's request for 11 | myunctive relief, ECF No. 29, 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)(I). Within 14 days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court. Responses to objections shall be filed within 14 days after service of 16 || objections. Failure to file objections within the specified time may waive the right to appeal. See 17 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 18 19 | Dated: June 22, 2023 Co 20 DENNIS M. COTA 7] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28