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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BENJAMIN D. TERRITO,

Plaintiff, No. CIV S-04-1460 MCE PAN P

vs.

RICHARD W. SANDHAM, M.D., et al.,

Defendants. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Before the court are plaintiff’s motions for injunctive relief. 

The legal principles applicable to a request for injunctive relief are well

established. To prevail, the moving party must show either a likelihood of success on the merits

and the possibility of irreparable injury, or that serious questions are raised and the balance of

hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122

F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

point being the degree of irreparable injury shown. See Oakland Tribune, 762 F.2d at 1376. 

“Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat

of irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm,

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the court need not reach the issue of likelihood of success on the merits. See id.

In cases brought by prisoners involving conditions of confinement, any

preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

harm the court finds requires preliminary relief, and be the least intrusive means necessary to

correct the harm.” 18 U.S.C. § 3626(a)(2).

Plaintiff is currently housed at the California Correctional Institution in

Tehachapi, California. The instant action stems from plaintiff’s allegations that two doctors at

High Desert State Prison were deliberately indifferent to plaintiff’s medical needs. 

Plaintiff is a brittle type one juvenile diabetic. In plaintiff’s January 3, 2006

motion, he seeks a court order concerning inadequate medical care and inadequate exercise

primarily due to his housing in administrative segregation. Plaintiff seeks to expedite his transfer

to a Substance Abuse Treatment Facility in Corcoran, California. Plaintiff seeks injunctive relief

from the State of California and/or the California Correctional Institution at Tehachapi.

Plaintiff seeks injunctive relief against individuals who are not named as

defendants in this action. This court is unable to issue an order against individuals who are not

parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

100, 112 (1969). 

In addition, plaintiff is presently housed in an institution that is governed by the

Fresno Division of the Eastern District Court of California. Because the court recognizes the

seriousness that diabetes presents, plaintiff would be better served by filing a new civil rights

complaint in the Fresno Division naming the specific defendants who are presently

demonstrating deliberate indifference to plaintiff’s serious medical needs. In the instant motion,

plaintiff has not carried his burden of demonstrating that particular staff members are being

deliberately indifferent to his serious medical needs. While plaintiff claims to have suffered five

hypoglycemic seizures between September 28, 2005 and December 28, 2005, he does not

specifically identify what actions or omissions took place that demonstrated deliberate

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indifference, nor the persons involved therein. Thus, plaintiff has not carried his burden of

demonstrating that he will suffer irreparable harm if this court does not enter an injunction at this

time. 

Plaintiff also noted he has not been receiving his monthly allotment of indigent

envelopes, a concern renewed from his December 8, 2005 request. In defendants’ response,

defendants state that the institution has confirmed plaintiff is receiving his twenty envelopes per

month. Defendants’ counsel has declared that the litigation coordinator met with plaintiff after

receiving counsel’s letter concerning plaintiff’s request, and the litigation coordinator gave

plaintiff several indigent envelopes. (Phillips Decl. at 1.) The litigation coordinator informed

counsel that part of the difficulties plaintiff was encountering was his attempt to use indigent

envelopes, which are to be used solely for legal mail, to mail to “recipients not recognized as

legal mail recipients. (Id. at 2.) The litigation coordinator confirmed plaintiff would be getting

his twenty indigent envelopes on a monthly basis. (Id. at 1-2.) Plaintiff’s request for an

injunction concerning indigent envelopes will also be denied. 

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s December 8,

2005 and January 3, 2006 motions for preliminary injunction be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

days after being served with 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.” The parties are advised that

failure to file objections within the specified time may waive the right to appeal the District

Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: February 23, 2006.

001; terr1460.tro

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