8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 KIRK ARDELL SJODIN, JR., Case No. 1:23-cv-00454-SAB
12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING 13 v. PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTION AND DISMISSING ACTION 14 STATE OF CALIFORNIA, et al., ORDER DIRECTING CLERK OF COURT 15 Defendants. TO RANDOMLY ASSIGN DISTRICT JUDGE 16 (ECF No. 1) 17 OBJECTIONS DUE WITHIN TWENTY- 19 20 Plaintiff Kirk Ardell Sjodin, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis,1 21 brings this action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 22 Currently before the Court is Plaintiff’s complaint filed in this action on March 24, 2023, 23 which was submitted as a request for an emergency injunction. (ECF No. 1.) For the following 24 reasons, the Court shall recommend the request for emergency injunction be denied and that this 25 action be dismissed without leave to amend, and without prejudice to raising such issues on 26 appeal or other appropriate mechanism after conclusion of the pending criminal proceedings. 27 1 The Court initially denied Plaintiff’s in forma pauperis application on March 28, 2023, and granted the renewed 28 application on April 17, 2023. (ECF Nos. 5, 8.) 1 I. 3 A. Screening Requirements 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 8 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 9 1915(e)(2)(B). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief ….” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009) 14 (citing Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007)); see also Ivey v. 15 Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (“Vague and conclusory 16 allegations of official participation in civil rights violations are not sufficient ….”). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 18 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 19 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 20 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 21 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss 22 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 23 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 24 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 25 at 969. 26 As a general rule, the Court must limit its review to the operative complaint and may not 27 consider facts presented in extrinsic evidence. See Lee v. City of L.A., 250 F.3d 668, 688 (9th 28 Cir. 2001). Materials submitted as part of the complaint, however, are not “outside” the 1 complaint and may be considered. Id.; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 2 F.2d 1542, 1555 n.19 (9th Cir. 1990). Moreover, the Court is not required to accept as true 3 conclusory allegations which are contradicted by exhibits to the complaint. See Sprewell v. 4 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 5 1187 (9th Cir. 2001); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). 6 Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured 7 by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995). 8 B. Emergency or Preliminary Injunctions 9 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 10 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 11 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 12 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 13 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 14 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 15 omitted). 16 Federal courts are courts of limited jurisdiction and in considering a request for 17 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 18 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 19 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 20 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 21 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 22 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 23 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation 24 of the Federal right, and is the least intrusive means necessary to correct the violation of the 25 Federal right.” 26 Furthermore, the pendency of this action does not give the Court jurisdiction over prison 27 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. 28 U.S., 599 F.3d 964, 969 (9th Cir. 2010). Rather, the Court’s jurisdiction is limited to the parties 1 in this action and to the viable legal claims upon which this action is proceeding. Summers, 555 2 U.S. at 491–93; Mayfield, 599 F.3d at 969. 3 II. 5 A. Plaintiff’s Filing 6 Plaintiff’s complaint was filed with a heading indicating Plaintiff requests an emergency 7 injunction as related to the pending trial in the United States District Court for the District of 8 Utah, United States v. Sjodin, Case No. 4:22-cr-00105-RJS-PK-1 (D. Utah) (the “Utah Action”).
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 KIRK ARDELL SJODIN, JR., Case No. 1:23-cv-00454-SAB
12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING 13 v. PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTION AND DISMISSING ACTION 14 STATE OF CALIFORNIA, et al., ORDER DIRECTING CLERK OF COURT 15 Defendants. TO RANDOMLY ASSIGN DISTRICT JUDGE 16 (ECF No. 1) 17 OBJECTIONS DUE WITHIN TWENTY- 19 20 Plaintiff Kirk Ardell Sjodin, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis,1 21 brings this action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 22 Currently before the Court is Plaintiff’s complaint filed in this action on March 24, 2023, 23 which was submitted as a request for an emergency injunction. (ECF No. 1.) For the following 24 reasons, the Court shall recommend the request for emergency injunction be denied and that this 25 action be dismissed without leave to amend, and without prejudice to raising such issues on 26 appeal or other appropriate mechanism after conclusion of the pending criminal proceedings. 27 1 The Court initially denied Plaintiff’s in forma pauperis application on March 28, 2023, and granted the renewed 28 application on April 17, 2023. (ECF Nos. 5, 8.) 1 I. 3 A. Screening Requirements 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 8 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 9 1915(e)(2)(B). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief ….” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009) 14 (citing Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007)); see also Ivey v. 15 Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (“Vague and conclusory 16 allegations of official participation in civil rights violations are not sufficient ….”). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 18 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 19 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 20 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 21 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss 22 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 23 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 24 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 25 at 969. 26 As a general rule, the Court must limit its review to the operative complaint and may not 27 consider facts presented in extrinsic evidence. See Lee v. City of L.A., 250 F.3d 668, 688 (9th 28 Cir. 2001). Materials submitted as part of the complaint, however, are not “outside” the 1 complaint and may be considered. Id.; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 2 F.2d 1542, 1555 n.19 (9th Cir. 1990). Moreover, the Court is not required to accept as true 3 conclusory allegations which are contradicted by exhibits to the complaint. See Sprewell v. 4 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 5 1187 (9th Cir. 2001); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). 6 Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured 7 by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995). 8 B. Emergency or Preliminary Injunctions 9 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 10 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 11 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 12 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 13 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 14 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 15 omitted). 16 Federal courts are courts of limited jurisdiction and in considering a request for 17 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 18 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 19 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 20 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 21 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 22 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 23 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation 24 of the Federal right, and is the least intrusive means necessary to correct the violation of the 25 Federal right.” 26 Furthermore, the pendency of this action does not give the Court jurisdiction over prison 27 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. 28 U.S., 599 F.3d 964, 969 (9th Cir. 2010). Rather, the Court’s jurisdiction is limited to the parties 1 in this action and to the viable legal claims upon which this action is proceeding. Summers, 555 2 U.S. at 491–93; Mayfield, 599 F.3d at 969. 3 II. 5 A. Plaintiff’s Filing 6 Plaintiff’s complaint was filed with a heading indicating Plaintiff requests an emergency 7 injunction as related to the pending trial in the United States District Court for the District of 8 Utah, United States v. Sjodin, Case No. 4:22-cr-00105-RJS-PK-1 (D. Utah) (the “Utah Action”). 9 Plaintiff names the State of California of California as the first Defendant, then states 10 Defendants numbers two and three are “N/A” but checks the boxes for official capacity, then as 11 the fourth Defendant, names the California Governor. (Compl. 2-3.) 12 Plaintiff indicates he brings the action pursuant to 42 U.S.C. § 1983, the Eighth 13 Amendment, the First Amendment, the Fourteenth Amendment, the Fourth Amendment, the 14 Sixth Amendment, 18 U.S.C. § 922, Notice of Restricted Person Status, and Title 76, Chapter 10, 15 Section 503(2)(a), Restricted Notice. (Compl. 3.) Where asked to state how the Defendants were 16 acting under color of law for Section 1983 purposes, Plaintiff directs the Court to Title 76, 17 Chapter 10, Section 503(2)(a). 18 Plaintiff claims that as a criminal defendant, he “was never provided with the ‘restricted 19 person’ notice in Title 76, Ch. 10, Section 503, on Case # MF005876A/2003 from Kern County 20 California and is now being charged as a restricted person on Case # 4:22-cr-00105 in the District 21 of Utah.” (Compl. 4.) Plaintiff proffers that events relating to this claim occurred in Kern 22 County, California on February 27, 2003 when he was sentenced in violation of the statute, and 23 states even on a wrongful conviction, the interstate compact to Oklahoma provided no notice, and 24 asks “is California responsible for restoring Kirk Sjodin, Jr.[’]s rights on Case # MF005876A or 25 is Oklahoma, or, do rights restore after 10 years?” (Compl. 5.) Plaintiff avers that the Utah 26 Action alleges Plaintiff is an unlawful person under 18 U.S.C. § 922(g)(1), and Oklahoma did not 27 say Plaintiff was restricted, and Plaintiff transferred from California to Oklahoma in 2010 on 28 Case # MF005876A. (Compl. 5.) 1 Plaintiff avers at one point to exoneration/wrongful conviction.2 However, under relief, 2 Plaintiff asks similar questions, “Is Sjodin a restricted person? Is case MF005876A jurisdiction in 3 Oklahoma, or California. Do rights restore after (10) years. And is Sjodin entitled to notice of 4 being restricted under 18 U.S.C. 922(g)(1)?” (Compl. 5.)
5 B. The Court Recommends the Request for Emergency Injunction be Denied and that the Action be Dismissed without Leave to Amend but Without 6 Prejudice to Filing Appropriate Appeals as to the any Issues Following a Final Decision in the Pending Criminal Matter 7 8 In the pending Utah Action,3 on September 28, 2022, the grand jury sitting in the District 9 of Utah returned an indictment charging Plaintiff with one count of being a felon in possession of 10 a firearm under 18 U.S.C. § 922(g)(1). (Case No. 4:22-cr-00105-RJS-PK-1 (D. Utah), ECF No. 11 1.) On December 5, 2022, Plaintiff waived his right to counsel. (Id. at ECF No. 50.) A final 12 pretrial conference was held on April 13, 2023. (Id. at ECF No. 160.) 13 A bench trial was held on April 26, 2023 before Judge Robert J. Shelby, and a Rule 23 14 findings and conclusions are forthcoming and set for pronouncement at a hearing scheduled for 15 May 11, 2023. (Id. at ECF Nos. 174 175.) 16 As stated in the Government’s pretrial brief, “the defendant was previously convicted of a 17 felony, that is, a crime punishable by imprisonment for a term exceeding one year,” and as 18
2 To the extent Plaintiff is requesting such exoneration on the Kern County conviction in case number MF005876A, 19 the Court notes that Plaintiff currently has a petition for writ of habeas corpus pending in the Eastern District of 20 California as to that conviction, Case No. 1:23-cv-00236-ADA-CDB. In that action, the Magistrate Judge’s recommendation that the petition be denied with prejudice and without leave to amend is currently pending 21 consideration by the District Judge. (See ECF No. 18 at 3 (“In this case, Petitioner challenges a 2003 state conviction and sentence . . . Petitioner notes his sentence concluded after 8 years and 8 months . . . Petitioner is not in custody 22 for his 2003 conviction and sentence when he filed this instant petition. Thus, the petition should be dismissed for lack of jurisdiction.”).) To the extent Plaintiff requests briefing pursuant to Anders, the Court finds that holding 23 inapplicable to the instant matter. See Anders v. California, 386 U.S. 738, 739, 87 S. Ct. 1396, 1397, 18 L. Ed. 2d 493 (1967) (“We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a 24 first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.”). 25
3 Under the Federal Rules of Evidence, a court may take judicial notice of a fact that is “not subject to reasonable 26 dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. 27 Evid. 201(b). Judicial notice may be taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee, 250 F.3d at 689; Tellabs, Inc. v. Makor Issues & 28 Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802 n.2 (9th Cir. 2002). 1 indicated in the brief, “[b]ased on the Defendant’s previous motions and assertions in this case, 2 the fulcrum on the trial appears to be the requisite scienter element of the offense – i.e., whether 3 Defendant believed he was a felon at the time of the charged offense,” and that “[t]he United 4 States will address this element, the requisite knowledge of status (previous conviction of an 5 offense punishable by more than a year imprisonment), as elucidated by the courts.” (Id. at ECF 6 No. 165 at 2-3.) 7 Plaintiff is currently facing federal charges in federal court in the Utah Action. 18 U.S.C. 8 § 922(g)(1) provides that “(g) It shall be unlawful for any person--(1) who has been convicted in 9 any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or 10 transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or 11 ammunition; or to receive any firearm or ammunition which has been shipped or transported in 12 interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). 13 Plaintiff’s complaint and request for an emergency injunction requests relief from the state 14 of California and its Governor in the federal criminal Utah Action, claiming that in the criminal 15 conviction that occurred in California in 2003, Plaintiff was not provided with the required notice 16 under Title 76, Chapter 10, Section 503(2)(a). However, this provision is a Utah state provision 17 inapplicable to California. See Utah Code § 76-10-503.1(2)(a)(i) (“A defendant intending to 18 plead guilty or no contest to a criminal charge that will, upon conviction, cause the defendant to 19 become a restricted person shall, before entering a plea before a court, sign an acknowledgment 20 that states: . . . that conviction of the charge will classify the defendant as a restricted person.” 21 Even if the statute applied to California, it provides that “[t]he failure to inform or obtain a signed 22 acknowledgment from the defendant may not render the plea invalid, form the basis for 23 withdrawal of the plea, or create a basis to challenge a conviction or sentence.” Utah Code § 76- 24 10-503.1(6). 25 Through its own research, it appears California has a somewhat similar statute. See Cal. 26 Penal Code § 29810(2) (“The court shall, upon conviction of a defendant for an offense described 27 in subdivision (a), instruct the defendant that he or she is prohibited from owning, purchasing, 28 receiving, possessing, or having under his or her custody or control, any firearms, ammunition, 1 and ammunition feeding devices, including but not limited to magazines, and shall order the 2 defendant to relinquish all firearms in the manner provided in this section.”); People v. Amaya, 3 No. E065092, 2017 WL 603915, at *3 (Cal. Ct. App. Feb. 15, 2017) (“Section 29800, subdivision 4 (a)(1), prohibits any person previously convicted of a felony from owning, purchasing, receiving 5 or possessing a firearm. When a person has been convicted of a felony, section 29810 requires 6 that written notification of the firearms restriction must be given at the time of sentencing.”). 7 However, even if the California statute was applicable to Plaintiff’s conviction, and was 8 not adhered to, the Court finds it improper to wade into a criminal action proceeding in another 9 federal court. Although the named Defendants in this action are the State of California and its 10 Governor, the relief requested is directed at the ongoing proceedings in the Utah Action. As 11 indicated in the trial brief, the issue of whether Plaintiff knew of his restricted persons status 12 appears to be an issue before the District Court in the Utah Action (Case No. 4:22-cr-00105-RJS- 13 PK-1 (D. Utah), ECF No. 165). See United States v. Tanner, No. 218CR00266APGEJY, 2019 14 WL 6703550, at *1 (D. Nev. Oct. 30, 2019) (“The Rehaif Court held that a successful prosecution 15 of the statutes at issue (18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2)) requires proof that a 16 defendant knew he/she possessed a firearm and knew that he/she belongs to the relevant category 17 of restricted persons.”) (emphasis in original) (citation omitted). 18 Again, to the extent Plaintiff is directly challenging the California conviction in case 19 number MF005876A, the Court would decline to address such conviction in relation to an 20 allegation of a procedural violation at sentencing, both because Plaintiff currently has a petition 21 for writ of habeas corpus pending in the Eastern District of California as to that conviction, and 22 for the reasons stated in the pending findings and recommendations in that action. (See Case No. 23 1:23-cv-00236-ADA-CDB, ECF No. 18 at 3 (“In this case, Petitioner challenges a 2003 state 24 conviction and sentence . . . Petitioner notes his sentence concluded after 8 years and 8 months . . 25 . Petitioner is not in custody for his 2003 conviction and sentence when he filed this instant 26 petition. Thus, the petition should be dismissed for lack of jurisdiction.”).) 27 Again, here, the motion for emergency injunction is directed at stopping the pending 28 criminal proceedings in the Utah Action, and the Court concludes the issues raised in Plaintiff’s 1 motion are indeed currently before the District Court in the Utah Action and being adjudicated in 2 that action. The Court finds the situation akin to issue preclusion, while it is unclear the finality 3 of all relevant decisions at this juncture: 4 Here, we find that, with respect to the search and seizure claims made by Brewer in the instant complaint, the legal requisites for 5 issue preclusion are fully satisfied. At the outset, the Fourth Amendment issues involved in this pro se civil case are the same as 6 those addressed by the district court in Brewer's criminal prosecution. Furthermore, the district court order denying the 7 motion to suppress is currently a final judgment on this issue, subject only to appellate review in the context of Brewer's pending 8 criminal case. Third, the party against whom the bar of collateral estoppel would apply, Jesse Brewer, is undeniably a party in the 9 underlying criminal case, since he is charged as a defendant in that case. Finally, Brewer has been, and will be, afforded a full and fair 10 opportunity to litigate this suppression issue in the course of the criminal prosecution, and any appeals of that criminal case. 11 Finding, therefore, that all of the requisites for the application of collateral estoppel to this search and seizure claim are fully satisfied 12 here, James v. Heritage Valley Fed. Credit Union, 197 Fed. Appx. 102, 105 (3d Cir.2006), “We have the authority to apply the 13 doctrine of claim preclusion or res judicata sua sponte, Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir.2002); Ezekoye v. Ocwen 14 Federal Bank FSB, 179 F.App'x 111, 114 (3d Cir.2006) (non precedential) [and] can ... invoke res judicata ‘if it is so plain from 15 the language of the complaint and other documents in the district court's files that it renders the suit frivolous.’ Gleash, 308 F.3d at 16 760.” Guider v. Mauer, CIVIL 1:CV–09–1915, 2009 WL 4015568 (M.D.Pa. Nov.19, 2009). Adopting this course, we find that 17 collateral estoppel, res judicata and issue preclusion apply here and plainly bar Brewer from pursuing these Fourth Amendment 18 claims at the present time in the context of this civil lawsuit. Therefore, these claims should be dismissed. 19 20 Brewer v. Hopple, No. 1:15-CV-0942, 2015 WL 3754548, at *7 (M.D. Pa. June 16, 2015). 21 Therefore, the Court concludes Plaintiff has not met the requirements for the emergency 22 injunctive relief he seeks in this motion. For the reasons explained above, the Court cannot find 23 that Plaintiff has shown a likelihood of success on the merits; and indeed, the Court finds no basis 24 to properly maintain this action in the face of the pending federal criminal Utah Action. Given 25 the pending Utah Action, the Court concludes Plaintiff has not demonstrated he is likely to suffer 26 irreparable harm in the absence of a preliminary injunction. Finally, Plaintiff has not presented 27 any evidence that the balance of equities is in his favor or that preliminary injunctive relief would 28 be in the public’s interest. Accordingly, it is recommended that Plaintiff’s motion for emergency 1 injunctive relief be denied. 2 As the injunctive relief is the only relief requested in this action, the Court finds dismissal 3 of this action in its entirety is appropriate, without leave to amend, but without prejudice to 4 raising such issues on appeal or other appropriate mechanism, such as in the Utah Action. See 5 Brewer, 2015 WL 3754548, at *7 n.1 (“Of course, dismissal of this civil lawsuit does not mean 6 that Brewer is without legal recourse to further pursue this Fourth Amendment claim . . . [as] [i]f 7 Brewer is convicted following his criminal trial, he may appeal his conviction and sentence, and 8 may challenge this supersession ruling, and thus obtain a full and fair opportunity to litigate the 9 issue.”). 12 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for an 13 emergency injunction (ECF No. 1) be DENIED and this action be DISMISSED without leave to 14 amend. 15 These findings and recommendations are submitted to the district judge assigned to this 16 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty- 17 one (21) days of service of this recommendation, Plaintiff may file written objections to these 18 findings and recommendations with the Court. Such a document should be captioned “Objections 19 to Magistrate Judge’s Findings and Recommendations.” The District Judge will review the 20 Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff 21 is advised that failure to file objections within the specified time may result in the waiver of rights 22 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 23 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that the Clerk of the Court be DIRECTED to randomly 2 | assign a District Judge to this action. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ May 4, 2023
‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28