(PC) Black v. Thompson

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RANDY LAMAR BLACK, No. 2:21-cv-02167-TLN-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. THOMPSON, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983 . Currently before the court is plaintiff’s November 14, 2022 motion a preliminary 19 injunction ordering defendant to provide him with medical care and/or transfer him to another 20 institution. ECF No. 39. For the reasons that follow, the motion must be denied. 21 I. Motion for Injunctive Relief 22 Plaintiff’s amended complaint proceeds on his claims that defendants Allred and Birch 23 denied him adequate medical care for his COVID-19 infection. ECF Nos. 38 at 3-4 (screening 24 order) & 41 (plaintiff’s notice of intent to proceed on cognizable claims). In this most recent 25 request for preliminary injunctive relief, plaintiff alleges that he asked the warden of his 26 institution why he could not get a transfer and that the warden replied, “Because you are white.” 27 ECF No. 39 at 1. Plaintiff argues that this violated his constitutional rights, particularly by 28 denying him transfer to an institution that is within 15 minutes of an outside hospital, which 1 plaintiff claims is necessary due to his health needs. Id. at 1-2 . Plaintiff would like to be 2 transferred to “Atlanta USI,” where he was previously incarcerated. Id. at 2 . 3 A preliminary injunction will not issue unless necessary to prevent threatened injury that 4 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 5 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 6 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far-reaching 7 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., [8] 326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must 9 demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 10 in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 11 injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 12 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has 13 also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing 14 the elements of the preliminary injunction test, so that a stronger showing of one element may 15 offset a weaker showing of another—survives Winter and continues to be valid. Alliance for the 16 Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious 17 questions going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can 18 support issuance of an injunction, assuming the other two elements of the Winter test are also 19 met.” Id. In cases brought by prisoners involving conditions of confinement, any preliminary 20 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 21 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 22 harm.” 18 U.S.C. § 3626 (a)(2). 23 Plaintiff fails to meet that standard. Plaintiff has not provided the court with anything that 24 would allow the court to evaluate the strength of his case. Nor has plaintiff provided any 25 argument or evidence concerning the other elements the court must consider in determining 26 whether to grant a preliminary injunction (irreparable harm, balance of equities, and public 27 interest). 28 //// ] Plaintiff also asks the court to add a new deliberate indifference claim to his complaint, 2 | but he does not state what facts make up the claim. ECF No. 39 at 2. If plaintiff wishes to add a 3 || claim to his case, he must do so by amending the complaint so that it is complete within itself (1-e. 4 || it contains all of plaintiff's claims and the facts underlying those claims). 5 I. Recommendation 6 For the foregoing reasons, it is hereby RECOMMENDED that plaintiff's November 14, 7 || 2022 motion for a preliminary injunction (ECF No. 39) order be DENIED. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). [15] 16 || Dated: December 21, 2022. □□ PDEA 17 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE