(PC) Hardney v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HARDNEY, No. 2:21-cv-0509 TLN AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KATHLEEN ALLISON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are plaintiff’s motion for injunctive relief and for a 19 settlement conference (ECF No. 26), and defendants’ motions to revoke plaintiff’s in forma 20 pauperis status (ECF No. 27) and to extend their time to file a responsive pleading (ECF No. 28). 21 Plaintiff requests an order directing defendants to return his legal materials and remove all 22 housing restrictions. ECF No. 26. He claims that on February 23, 2022, he was moved into 23 “PSU housing on quarantine status for COVID-19” despite being cleared two to three weeks 24 prior. Id. at 1. Plaintiff asserts that the move was retaliatory and that due to his current housing 25 assignment he is subject to unspecified housing restrictions and has been deprived of his legal 26 materials. Id. 27 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 28 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 1 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 2 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Furthermore, mandatory 3 preliminary injunctions like the one plaintiff seeks, as opposed to those which preserve the status 4 quo, are “particularly disfavored” and “the district court should deny such relief unless the facts 5 and law clearly favor the moving party.” Stanley v. Univ. of S. Calif., 13 F.3d 1313, 1320 (9th 6 Cir. 1994) (citation and internal quotation marks omitted); Garcia v. Google, Inc., 786 F.3d 733, 7 740 (9th Cir. 2015) (plaintiff seeking mandatory injunction “must establish that the law and facts 8 clearly favor her position, not simply that she is likely to succeed.” (emphasis in original)). 9 At this stage, plaintiff has failed to demonstrate that he is likely to succeed on the merits. 10 Defendants have moved to revoke plaintiff’s in forma pauperis status, which may result in 11 dismissal of this case if the motion is granted and plaintiff is unable to pay the filing fee in full. 12 Furthermore, plaintiff has not shown that he is likely to suffer irreparable harm as he has not 13 identified the housing restrictions he has been subjected to or specified what legal materials he is 14 being denied or why he requires access to said materials. As such, he also fails to demonstrate 15 that the balance of equities tips in his favor or that an injunction is in the public interest. Finally, 16 plaintiff makes only a conclusory assertion that his housing assignment is retaliatory, and there is 17 no evidence that it was the result of defendants’ conduct or the conduct of individuals working in 18 concert with defendants. See Fed. R. Civ. P. 65(d)(2) (an injunction can bind non-parties only if 19 they are acting “in active concert or participation” with a party); Zenith Radio Corp. v. Hazeltine 20 Research, Inc., 395 U.S. 100, 112 (1969) (“[A] nonparty with notice cannot be held in contempt 21 until shown to be in concert or participation.”). For all these reasons, the motion for injunction 22 should be denied. 23 Plaintiff also requests that the court schedule the parties for a settlement conference. ECF 24 No. 26 at 2. On March 18, 2022, defendants requested to opt out of the Post-Screening ADR 25 Project, ECF No. 24, and that request was granted, ECF No. 25. In light of defendants’ recent 26 representation that they believe a settlement conference would be a waste of resources at this 27 time, and the currently pending motion to revoke plaintiff’s in forma pauperis status, the request 28 for a settlement conference will be denied. ] As noted above, defendants have filed a motion to revoke plaintiff’s in forma pauperis 2 || status, which could potentially lead to the dismissal of this action. Given the potential for 3 || dismissal, defendants have requested that their time to file a responsive pleading be extended. 4 | The request will be granted. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for a settlement conference (ECF No. 26) is DENIED. 7 2. Defendants’ motion for an extension of time (ECF No. 28) is GRANTED. The 8 | deadline for defendants to respond to the complaint will be set, as necessary, upon resolution of 9 || the pending motion to revoke plaintiff's in forma pauperis status. 10 IT IS FURTHER RECOMMENDED that plaintiff's motion for a preliminary injunction 11 | (ECF No. 26) be DENIED. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 || objections shall be served and filed within fourteen days after service of the objections. The 18 || parties are advised that failure to file objections within the specified time may waive the right to 19 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | DATED: March 25, 2022 ~ 21 Chthwen— Clare ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28