(PC) Harris v. Kyle

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DEVONTE B HARRIS, 1:19-cv-00462-DAD-EPG (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S v. MOTION FOR TEMPORARY INJUNCTIVE RELIEF BE DENIED K KYLE, et al., (ECF Nos. 9, 22) Defendants. OBJECTIONS, IF ANY, DUE WITHIN

Plaintiff, Devonte B. Harris, is a state prisoner proceeding pro se and in forma pauperis in

this civil rights action filed pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff’s motion

for temporary injunctive relief (ECF Nos. 9, 22). For the reasons discussed below, the Court

recommends that Plaintiff’s motion be denied as moot.

On May 16, 2019, Plaintiff filed a document titled “Memorandum of points and authorities in support of Plaintiff’s motion for a temporary restraining order and preliminary injunction.” (ECF No. 9.) Plaintiff did not, however, filed an accompanying motion for temporary injunctive relief. On September 20, 2019, Plaintiff filed a “request for ruling on temporary restraining order.” (ECF No. 22.) Based on this request, the Court construed Plaintiff’s memorandum of points and authorities (ECF No. 9) combined with Plaintiff’s request for ruling on temporary restraining order (ECF No. 22) as a motion for temporary injunctive relief and directed Defendants to file a response. (See ECF No. 24.) Defendants filed their opposition to Plaintiff’s motion on October 14, 2019 (ECF No. 27), and Plaintiff filed his reply in support of his motion on October 28, 2019 (ECF No. 33). In his motion for preliminary injunctive relief, Plaintiff seeks an order prohibiting Defendants from housing Plaintiff in Short Term Restricted Housing (“STRH”). (ECF No. 9, 33.) Plaintiff contends that if he “is placed in STRH he is likely to commit suicide or serious self harm

and staff’s unresponsiveness to this risk is documented. Also, his psychological reaction will

probably cause a physical confrontation with staff leading to someone getting hurt and Plaintiff

being seriously disciplined and potentially criminally charged.” (Id.) Plaintiff admits that he is

currently house in Long Term Restricted Housing (“LTRH”), and that “[t]he only adjustment

defendants would have to make is ensuring plaintiff isn’t housed in STRH when he is temporarily

transferred to CSP-Sacramento for court.” (ECF No. 9 at 8-9.)

During the scheduling conference, held on January 22, 2020, and in his reply brief,

Plaintiff admitted that the temporary transfer to CSP-Sacramento for court has already occurred,

and that Plaintiff is now back at CSP-Corcoran and is being housed in the LTRH. Thus, Plaintiff

is no longer subject to the risk of harm upon which his motion for temporary injunctive relief is

based, rendering his motion for temporary injunctive relief moot.1

IT IS HEREBY RECOMMENDED that Plaintiff’s motion for temporary injunctive

relief (ECF No. 25) be DENIED as moot.

These Findings and Recommendations will be submitted to the United States District Court

Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within twenty-

one (21) days after being served with a copy of these Findings and Recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” \\\ \\\ \\\

1 Although Plaintiff raised additional arguments in his reply brief and during the scheduling conference, including arguments regarding the IEX program and that he did not want to be taken out of LTRH, the Court declines to address those arguments. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”); Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) (“It is inappropriate to consider arguments raised for the first time The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

6] Dated: _ February 3, 2020 [sf ee ey UNITED STATES MAGISTRATE JUDGE