(PC) Diaz v. Osman

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MIGUEL ENRIQUE DIAZ, No. 2:23-cv-01449-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING M. OSMAN, et al., PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF 15 Defendants. (Doc. Nos. 1, 12) 17 Plaintiff Miguel Enrique Diaz is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On July 20, 2023, plaintiff initiated this action by filing a motion for preliminary injunctive relief (Doc. No. 1), which the assigned magistrate judge also construed as the operative complaint. On January 12, 2024, the magistrate judge screened plaintiff’s complaint and found that it lacked organization, appeared to join unrelated claims, was unclear as to which defendants were named and which claims were brought against those defendants, and ultimately failed to state any cognizable claims for relief. (Doc. No. 12 at 3.) Consequently, the magistrate judge ordered plaintiff to file a first amended complaint and to either file an application to proceed in ///// ///// forma pauperis or pay the required filing fee to proceed with this action.1 (Id. at 5.) On January 12, 2024, the magistrate judge also issued findings and recommendations recommending that plaintiff’s motion for preliminary injunctive relief, in which plaintiff requested that the court: (i) investigate certain defendants, (ii) order that he be granted single-cell status, and (iii) order defendants to provide wound care to injuries on his foot (Doc. No. 1), be denied because plaintiff failed to show that he will suffer irreparable harm absent the request injunctive relief. (Doc. No. 12 at 4–5.) The pending findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 5.) After requesting and receiving two extensions of time in which to do so, on March 8, 2024, plaintiff filed objections to the pending findings and recommendations. (Doc. No. 16.)

11 In his objections, plaintiff repeats many of the same arguments that he had presented in his motion for preliminary injunctive relief and that the magistrate judge already addressed in the findings and recommendations. (Doc. No. 16.) To support his assertion that he will suffer irreparable harm absent an injunction, plaintiff attaches as exhibits to his objections photographs of the wounds on his toes, purportedly taken in April 2023 and February 2024, which are similar to the photographs taken in 2022 that plaintiff had attached to his motion for preliminary injunctive relief. (Id. at 7–15.) Plaintiff’s additional photographs are insufficient to satisfy the irreparable harm requirement for obtaining preliminary injunctive relief, and as the magistrate judge explained in the findings and recommendations, plaintiff’s reference to “the possibility of infection and amputation” is insufficient to raise the threat of harm “beyond the speculative level.” (Doc. No. 12 at 4.) Plaintiff’s objections simply provide no basis upon which to reject the pending findings and recommendations. Moreover, although the findings and recommendations did not address the other requisite factors set forth in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), the undersigned notes that in the absence of an operative complaint Plaintiff has since sought and received several extensions of time in which to comply with those directives, with the latest extension providing a filing deadline of August 5, 2024. (Doc. Nos. 14, 17, 21, 23.) Because plaintiff has yet to file a first amended complaint as directed, plaintiff’s original complaint remains operative and continues to suffer from the pleading deficiencies identified by the magistrate judge.

1 | that states a cognizable claim, plaintiff has also plainly failed to demonstrate a likelihood of || success on the merits, which is required to obtain preliminary injunctive relief. Accordingly, the | undersigned will adopt the findings and recommendations and deny plaintiff's motion for | preliminary injunctive relief without prejudice to plaintiff seeking appropriate injunctive relief in | connection with any claims found to be cognizable in his forthcoming first amended complaint.

6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this | court has conducted a de novo review of this case. Having carefully reviewed the entire file, | including plaintiffs objections, the court finds the findings and recommendations to be supported | by the record and proper analysis.

10 Accordingly, 11 1. The findings and recommendations issued on January 12, 2024 (Doc. No. 12) are 12 adopted in full; 13 2. Plaintiff's motion for preliminary injunctive relief (Doc. No. 1) is denied; and 14 3. This matter is referred back to the assigned magistrate judge for further 15 proceedings.

16 IT IS SO ORDERED. 'T | Dated: _ July 8, 2024 □□□ A. 2, ye 18 DALE A. DROZD 19 UNITED STATES DISTRICT JUDGE