UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 3, 2009
ANDRE L. WILEY, PLAINTIFF,
JAMES HARTLEY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING MOTION FOR INJUNCTION, AND REQUIRING PLAINTIFF TO FILE COMPLAINT WITHIN THIRTY DAYS
On May 21, 2009, Plaintiff Andre L. Wiley, a state prisoner proceeding pro se and in forma pauperis, filed a motion seeking a "temporary injunction." (Doc. 1.) Plaintiff seeks a court order requiring Avenal State Prison to grant him access to the law library, release him from administrative segregation, and allow him to access his legal property. Because the issues relate to Plaintiff's conditions of confinement at Avenal State Prison and Plaintiff cites to 42 U.S.C. § 1983, the motion was construed as a complaint and this civil rights action was opened.
A motion for a temporary restraining order be accompanied by a complaint, and a temporary restraining order will not be granted absent notice to the affected parties or their counsel except in the most extraordinary of circumstances. Local Rule 65-231. In this instance, there is no complaint on file, and extraordinary circumstances have not been presented.
Further, even if construed as a motion for a preliminary injunction rather than a temporary restraining order, in the absence of a complaint that sets forth a viable claim for relief under section 1983, the Court has no jurisdiction to issue the orders sought, City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006), and the motion makes no showing of "either (1) a combination of probable success and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardship tips in [Plaintiff's] favor," Arcamuzi v. Continental Air Lines, Inc., 819 F. 2d 935, 937 (9th Cir. 1987). Therefore, Plaintiff's motion must be denied.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's motion for a "temporary injunction," filed May 21, 2009, is DENIED;
2. The Clerk's Office shall send Plaintiff a civil rights complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a complaint; and
4. The failure to comply with this order will result in dismissal of this action, without prejudice.
IT IS SO ORDERED.
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