Opinion
Case No. 1:12-cv-00326-LJO-MJS (PC)
12-31-2013
SY LEE CASTLE, Plaintiff, v. C. CHEN, Defendant.
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION
FOR MISCELLANEOUS RELIEF
(ECF No. 29)
Plaintiff Sy Lee Castle is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter proceeds against Defendant Chen on claims of inadequate medical care and retaliation. The case is in the discovery phase.
Before the Court is Plaintiff's motion for judicial notice that Plaintiff proceeds only against Defendant Chen and that Plaintiff has been separated from his legal property.
Plaintiff points out that the Court's recent discovery and scheduling order (ECF No. 24) captions Defendants "C. Chen et al." Plaintiff seeks notice that this matter proceeds only against Defendant Chen. The Court takes notice this action proceeds only against Defendant C. Chen. (ECF No 12.)
The Court takes judicial notice of its own records. Fed.R.Civ.P. 201; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Plaintiff's request that the Court take judicial notice that he has been transferred to AdSeg and thus separated from his legal property shall be denied. Plaintiff's alleged separation from his legal property is not a fact susceptible of judicial notice. Fed. R. Evid. 201(b). If Plaintiff is seeking recovery of his legal property as injunctive relief, he has not shown the existence of any of the criteria for such relief, i.e., (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in Plaintiff's favor. Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); see City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983) (plaintiff must show "real and immediate" threat of injury). Plaintiff's motion does not demonstrate likelihood of success on the merits or relative hardship he might suffer absent injunctive relief. Nothing before the Court suggests a present need for and entitlement to injunctive relief.
Accordingly, it is HEREBY ORDERED THAT Plaintiff's motion for judicial notice is GRANTED IN PART as to this matter proceeding only against Defendant C. Chen, and DENIED IN PART as to Plaintiff's alleged separation from his legal property without prejudice to any future request for injunctive relief thereon. IT IS SO ORDERED.
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE