(PC) McKenna v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD PHILLIP MCKENNA, No. 2:22-cv-01294-KJM-CKD P 12 Plaintiff, 13 v. ORDER 14 T. CISNEROS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 25, 2022, the Magistrate Judge filed an order and findings and 21 recommendations. F&R, ECF No. 26. The Magistrate Judge granted plaintiff’s motion to 22 proceed in forma pauperis, dismissed the complaint with leave to amend under the screening 23 provisions of 28 U.S.C. § 1915A, imposed filing and page limit restrictions on further pleadings, 24 and permitted plaintiff to add claims or defenses to his amended complaint. Id. at 11–12. The 25 Magistrate Judge also recommended denying plaintiff’s motions for injunctive relief without 26 prejudice. Id. at 12. The order and findings and recommendations were served on plaintiff and 27 contained notice that any objections to the findings and recommendations were to be filed within 28 fourteen days. Plaintiff has filed objections to the findings and recommendations, ECF No. 31, 1 and two motions for emergency injunctive relief, ECF Nos. 29, 35. He has also requested 2 reconsideration of this court’s and the Magistrate Judge’s orders denying his request to appoint 3 counsel. See Mots., ECF Nos. 22, 30; Orders, ECF Nos. 15, 25. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 court has conducted a de novo review of the pending motions for injunctive relief and related 6 filings. The court agrees with the Magistrate Judge that plaintiff has not shown he is “likely to 7 succeed on the merits” and has not raised “serious questions going to the merits.” F&Rs at 9–10 8 (first quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), then quoting All. for 9 the Wild Rockies v. Cottress, 632 F.3d 1127, 1131 (9th Cir. 2011)). That shortcoming suffices to 10 show the pending motions must be denied. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 11 (2008). The court need not and does not consider whether a federal court may restrain or enjoin a 12 non-appearing defendant in these circumstances. See F&Rs at 10 (“At this stage in the 13 proceedings, injunctive relief is also premature since no defendant has been served.”); but cf. 14 Fed. R. Civ. P. 65 (b)(1) (establishing procedure for issuing temporary restraining orders without 15 notice). 16 Plaintiff does not expressly request reconsideration of the Magistrate Judge’s order 17 limiting his filings and motions. If he intended to make that request, the court would deny it. The 18 Magistrate Judge’s orders were not “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 19 72(a). The filings at ECF Nos. 29 and 35 are therefore stricken as unauthorized. 20 The court also denies plaintiff’s motions to reconsider its previous orders on the 21 appointment of counsel. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995) 22 (“[T]he court may reconsider previously decided questions in cases in which there has been an 23 intervening change of controlling authority, new evidence has surfaced, or the previous 24 disposition was clearly erroneous and would work a manifest injustice.”). 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The findings and recommendations filed October 25, 2022 (ECF No. 26), are adopted 27 in part as described above; 28 ///// ] 2. Plaintiffs motions for a preliminary injunction/temporary restraining order and related 2 || relief (ECF Nos. 3, 16-17, 21) are denied without prejudice; 3 3. The filings at ECF Nos. 29 and 35 are stricken as unauthorized; 4 4. The motions to reconsider at ECF Nos. 22 and 30 are denied; and 5 4. This matter is referred back to the assigned magistrate judge for all further pretrial 6 || proceedings, including plaintiff's motions for extensions of time and page limits at ECF Nos. 32 7 || and 34. 8 | DATED: December 14, 2022. 9 10 ( epi / □ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28