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Bell v. Almager

April 28, 2008

WILLIE BELL, JR., CDCR #H-90929, PLAINTIFF,
v.
V.M. ALMAGER; GARCIA, APPEALS 28 U.S.C. §§ 1915(E)(2)(B) COORDINATOR; D.J. DEGEUS, CCII APPEALS & 1915A(B); AND COORDINATOR; R&R PACKAGE OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Marilyn L. Huff United States District Judge

ORDER:

(1) DENYING EX PARTE MOTION FOR PRELIMINARY CLASS ACTION INJUNCTION

[Doc. No. 9];

(2) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO

(3) DENYING MOTION TO CERTIFY CLASS [Doc. No. 8] AS MOOT

I. Procedural History

On January 28, 2008, Plaintiff, a state inmate currently incarcerated at Centinela State Prison ("Centinela") and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff sought to hold prison official at Centinela liable for their refusal to mail a package to Plaintiff's family because he allegedly had insufficient funds in his inmate trust account. Plaintiff sought compensatory and punitive damages in the amount of $858,000.08. In addition to filing a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), Plaintiff also filed a Motion for Appointment of Counsel, and a Motion for Injunction and Temporary Restraining Order ("TRO").

On February 4, 2008, this Court granted Plaintiff's Motion to Proceed IFP and denied Plaintiff's Motion for Appointment of Counsel. This Court later sua sponte dismissed Plaintiff's Complaint for failing to state a claim and denied Plaintiff's Ex Parte Motion for Permanent Injunction. See Feb. 21, 2008 Order at 9. Nonetheless, the Court permitted Plaintiff the opportunity to amend his Complaint to correct the deficiencies of pleading identified by the Court. Id. at 8-9. On February 28, 2008, Plaintiff filed his First Amended Complaint ("FAC"), as well as another "Motion for Preliminary Class Action Injunction." [Doc. Nos. 7, 9].

I. PLAINTIFF'S MOTION FOR INJUNCTION AND TRO

Plaintiff has filed a "Motion Requesting Preliminary Class Action Injunction" [Doc. No. 9], along with an affidavit in support of his Motion.

Rule 65 of the Federal Rules of Civil Procedure provides that: A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, is any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

FED.R.CIV.P. 65(b).

Plaintiff's Motion for Injunction does not comply with Rule 65(b)'s important procedural notice requirement. Here, Plaintiff has not demonstrated that his First Amended Complaint, or his Motion have been served on any named Defendant. And while Defendants, as employees of the CDCR, may ultimately be represented by the Attorney General in this matter, there has been no appearance on any Defendant's behalf by the Attorney General at this preliminary stage of the proceedings. Moreover, Plaintiff has not submitted a sworn affidavit or declaration certifying that any efforts have been made to give notice of his Motion or First Amended Complaint to any named Defendant, which is required by Federal Rule of Civil Procedure 65(b).

As noted above, under Federal Rule of Civil Procedure 65(b), a TRO may be granted without notice to the adverse party or that party's attorney only if "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition." FED.R.CIV.P. 65(b). Federal Rule of Civil Procedure 65(b) also requires the Plaintiff to certify to the Court "the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be ...


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