(PC) Israel v. Shmary

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIVA AVIKAIDA ISRAEL, No. 2:21-cv-0262-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 RABBIT SHMARY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with this civil rights action under 42 U.S.C. 18 § 1983, moves for a preliminary injunction. ECF No. 13. Plaintiff claims that prison officials at 19 Mule Creek State Prison are interfering with her access to the courts by refusing to sign or date 20 the certificates of service accompanying her outgoing mail to the courts.1 Id. at 1. She alleges 21 that this “could cause an injury that can never be fixed . . . .” Id. For the reasons that follow, 22 plaintiff’s request must be denied. 23 A preliminary injunction will not issue unless necessary to prevent threatened injury that 24 would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. 25 v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 26 F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching 27 1 Plaintiff identifies herself by the pronouns “she” and “her.” ECF No. 13. The Court will 28 do the same. 1 power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 2 326 F.2d 141, 143 (9th Cir. 1964). To be entitled to preliminary injunctive relief, a party must 3 demonstrate “that [s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable 4 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an 5 injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 6 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The U.S. Court of 7 Appeals for the Ninth Circuit has also held that the “sliding scale” approach it applies to 8 preliminary injunctions—that is, balancing the elements of the preliminary injunction test, so that 9 a stronger showing of one element may offset a weaker showing of another—survives Winter and 10 continues to be valid. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 11 2010). “In other words, ‘serious questions going to the merits,’ and a hardship balance that tips 12 sharply toward the plaintiff can support issuance of an injunction, assuming the other two 13 elements of the Winter test are also met.” Id. In cases brought by prisoners involving conditions 14 of confinement, any preliminary injunction “must be narrowly drawn, extend no further than 15 necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive 16 means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 17 Plaintiff fails to meet that standard. This action alleges violations of plaintiff’s right to 18 freedom of religion (see ECF Nos. 1, 7), not her legal mail or access to the courts. Because 19 plaintiff’s motion addresses conduct that is not the subject of this action, it does not demonstrate 20 either a likelihood of success or a serious question going to the merits of her complaint. Also 21 significant is that plaintiff’s purported injury is entirely speculative. See ECF No. 13 at 1 22 (alleging that mailroom misconduct “could” cause irreparable injury). In the event plaintiff does 23 suffer an injury, her recourse is to first pursue her administrative remedies at Mule Creek and 24 once those remedies are exhausted, to commence a separate civil rights action. See McKinney v. 25 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) and Rhodes v. Robinson, 621 F.3d 26 1002, 1004-07 (9th Cir. 2010) (together holding that claims must be exhausted prior to the filing 27 of the original or supplemental complaint). 28 ///// ] For these reasons, plaintiff's motion for a preliminary injunction (ECF No. 13) must be 2 || denied. 3 Accordingly, it is ORDERED that the Clerk of the Court randomly assign a United States 4 | District Judge to this case. 5 Further, it is RECOMMENDED that plaintiff's motion for a preliminary injunction (ECF 6 || No. 14) be denied. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 || after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 14 | DATED: May 12, 2021.

16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28