Opinion
No. CIV S-05-2410 FCD KJM PS.
December 16, 2005
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding pro se. Pending before the court is plaintiff's amended motion for injunctive relief. The matter was referred to the undersigned by minute order filed December 14, 2005. It is not clear from plaintiff's pleadings whether she seeks a temporary restraining order, a preliminary injunction, or a permanent injunction. It appears, however, that plaintiff seeks an order directing defendants to authorize immediate spinal fusion surgery for plaintiff under the California Workers' Compensation system. The court will construe the motion as one for preliminary injunctive relief.
To prevail on a motion for preliminary injunction, 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. 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.
Plaintiff fails to demonstrate a significant degree of irreparable injury inasmuch as the letter dated September 21, 2005 from Dr. Tepper, an orthopedic spinal expert, indicates that the surgery plaintiff seeks by way of injunctive relief is anelective cervical spine reconstruction. See Exhibit 8 to Mem. Supp. Mot. for Injunctive Relief. Dr. Tepper confirms his conclusions in his letter dated November 9, 2005. Id. If surgery is elective, it is by definition not of such an urgent nature that irreparable injury would occur if not immediately performed. Plaintiff has had ongoing problems arising out of her industrial injury, which occurred in 1994, but fails to demonstrate why the surgery she seeks now by way of injunctive relief is emergent.
All subsequent cites to exhibits are to those attached to plaintiff's memorandum.
The likelihood of success on the merits also appears dubious. Plaintiff apparently has an ongoing workers' compensation case regarding the injuries giving rise to plaintiff's claims in the instant federal action. See Exhibit 7. The gravamen of plaintiff's claim for injunctive relief goes to the heart of plaintiff's claims in her workers' compensation case. It thus appears this court should abstain from hearing plaintiff's claim for injunctive relief under the principles of Burford abstention. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Moreover, plaintiff previously has filed an action in state court alleging claims arising out of the same conduct grounding the instant federal action, and obtained an award directing the provision of medical care as necessary to "cure or relieve" the effects of her injury. See Exhibits 1-6. It thus also appears the instant action may be barred under the principles of res judicata. Further, although plaintiff's amended complaint alleges claims under federal civil rights statutes, two of the named defendants, an attorney and a claims adjuster, do not appear to be state actors and therefore are not amenable to suit for violation of plaintiff's civil rights; the claims adjuster appears to be the primary object of the motion for preliminary injunctive relief. See, e.g., Arnold v. International Business Machines Corp., 637 F.2d 1350 (9th Cir. 1981). Plaintiff also fails to allege with specificity the causal link between defendant Rea, acting director of the Department of Industrial Relations, and the claimed constitutional violations. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are insufficient to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Finally, plaintiff has failed to comply with all of the procedural requirements set forth in Local Rule 65-231.
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff's December 8, 2005 amended motion for injunctive relief be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, as provided by 28 U.S.C. § 636(b)(l). Within ten 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." Any reply to the objections shall be served and filed within five days after service of the objections. 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).