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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BYRON L. SCOTT,

Plaintiff, No. CIV S-04-2586 LKK GGH P

vs.

CALIFORNIA SUPREME COURT, 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. Pending before the court is plaintiff’s emergency motion filed April 29, 2005. 

The court construes this as a motion for injunctive relief. For the following reasons, the court

recommends that the motion be denied.

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

well established. To prevail in this circuit, the moving party must satisfy one of two tests. Under

the first test, movant must show 1) there will be irreparable damage suffered if injunctive relief is

not granted; 2) movant will probably prevail on the merits; 3) when equities are balanced, nonmovant will not suffer more harm than movant is helped by the injunction; and 4) granting the

injunction is in the public interest. Martin v. International Olympic Committee, 740 F.2d 670,

674-5 (9th Cir.1984). In the alternative, a preliminary injunction can be issued if the moving

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party can show either a combination of probability 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. Id. at p. 675. 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. 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, the

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

In the pending motion plaintiff alleges that prison officials refused to provide him

with meals appropriate to his religious holidays. This action is proceeding on the original

complaint filed December 6, 2004, as to one claim only: defendant Runnels violated plaintiff’s

First Amendment rights by denying plaintiff’s request for a name change. 

As indicated above, in order to grant a preliminary injunction, the court must first

decide that the underlying claim has some chance of success. Plaintiff’s claim that he is not

being provided proper religious meals is unrelated to his claim that defendant refused his request

to change his name for religious reasons. Although both claims are based on the First

Amendment right to religious freedom, they are distinct. Because the motion for injunctive for

relief concerns issues not raised in the complaint, the motion should be denied. If plaintiff

wishes to challenge the failure of prison officials to provide him with proper religious meals, he

must file a separate civil rights action.

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s April 29, 2005,

emergency motion, construed as a motion for a 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 twenty

days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” Plaintiff is 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: 6/10/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

sco2586.fr

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