(PC) Rouser v. Covello ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM ROUSER, Case No. 2:21-cv-01396-KJM-JDP (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO ENFORCE SERVICE, 11 v. MOTION FOR SANCTIONS, AND VACATING FINDINGS AND 12 S. GYLES, et al., RECOMMENDATIONS 13 Defendants. ECF Nos. 13, 24, & 26 14 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR 15 PRELIMINARY INJUNCTION BE DENIED 16 ECF No. 9 17 Plaintiff filed a preliminary injunction on October 25, 2021, ECF No. 9, and I 18 recommended that it be denied because the complaint did not raise cognizable claims. ECF No. 19 13. Although those recommendations remain pending, plaintiff has since filed a Second 20 Amended Complaint, ECF No. 14, and so I will withdraw my previous findings and 21 recommendations. The discussion below considers plaintiff’s motion for a preliminary 22 injunction, ECF No. 9, in light of his Second Amended Complaint. 23 To obtain a preliminary injunction, a plaintiff must establish: (1) a likelihood of success 24 on the merits, (2) a likelihood of irreparable harm in the absence of preliminary relief, (3) that the 25 balance of equities favors the movant, and (4) that an injunction is in the public interest. See 26 Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an extraordinary 27 remedy never awarded as of right.” Id. at 24. Here, plaintiff requests a preliminary injunction 28 1 based on an inability to adequately access the law library at Mule Creek State Prison. ECF No. 9 2 at 1-2. He broadly alleges that defendants have closed the law library for periods of time and 3 prevented him from meeting court deadlines. Id. at 1. At this juncture, however, plaintiff has not 4 presented any evidence suggesting that he is likely to succeed on the merits or that he is likely to 5 suffer irreparable harm absent an injunction. His motion is unsupported by any specific evidence 6 that would allow me to conclude that he has met his high burden of persuasion on these issues; 7 his current allegations are insufficient to sustain preliminary injunctive relief. See Mazurek v. 8 Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic 9 remedy, one that should not be granted unless the movant, by a clear showing, carries the burden 10 of persuasion.”) (quotations and citations omitted) (emphasis in original); see also Wiseman v. 11 Cate, Case No.: 1:14-cv-00831-DAD-SAB (PC), 2016 U.S. Dist. LEXIS 22680, 2016 WL 12 729619, at *1 (E.D. Cal. Feb. 24, 2016) (“A party seeking a temporary restraining order or 13 preliminary injunction simply cannot prevail when that motion is unsupported by evidence.”). 14 Moreover, although plaintiff claims that he will suffer irreparable harm absent a preliminary 15 injunction, he has not identified that harm. There is no freestanding right to a law library. See 16 Lewis v. Casey, 518 U.S. 343, 351 (1996). And, while plaintiff alleges that he is facing court 17 deadlines, he has not claimed to have missed those deadlines or, in any specific terms, that he has 18 been otherwise unable to pursue his legal claims. ECF No. 9 at 2. At best, plaintiff alleges that 19 he could not access the law library to do legal research for an opposition in another case, Rouser 20 v. Gamboa, No. 2:19-cv-01233-TLN-DMC. Plaintiff alleges that this denial of access occurred 21 on October 28, 2021. ECF No. 9 at 2. I have reviewed the docket in that case and no motion by 22 defendants requiring an opposition was filed during that time. Accordingly, I recommend that the 23 motion for preliminary injunction, ECF No. 9, be denied. 24 It is ORDERED that: 25 1. The findings and recommendations at ECF No. 13 are VACATED and 26 WITHDRAWN. 27 2. Plaintiff’s motion to enforce service, ECF No. 24, is DENIED as moot in light of 28 defendants’ notice of waiver of service at ECF No. 25. 1 3. Plaintiff's motion for sanctions, ECF No. 26, is contingent on the alleged failure to 2 || effect service, is also DENIED. 3 Further, it is RECOMMENDED that plaintiff's motion for preliminary injunctive relief, 4 | ECF No. 9, be DENIED without prejudice. 5 These recommendations will be submitted to the U.S. district judge presiding over the 6 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of 7 | these findings and recommendations, plaintiff may file written objections with the court. That 8 | document must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 9 | The presiding district judge will then review the findings and recommendations under 28 U.S.C. 10 | § 636(b)1)(C). 11 IT IS SO ORDERED. 13 ( 1 Ow — Dated: _ November 3, 2022 Q_——. 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28