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Billy Fulton v. P. L. Vasquez

January 10, 2011

BILLY FULTON,
PLAINTIFF,
v.
P. L. VASQUEZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL AND MOTION FOR PRELIMINARY INJUNCTION

(ECF Nos. 11 & 15)

ORDER

I. PROCEDURAL HISTORY

Plaintiff Billy Fulton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original Complaint on February 18, 2010. (ECF No. 1.) He consented to Magistrate Judge jurisdiction on February 26, 2010. (ECF No. 4.) Plaintiff filed a First Amended Complaint on May 24, 2010. (ECF No. 10.) No other parties have appeared in this action. The Court has not yet screened Plaintiff's Complaint.

Plaintiff now has two motions pending before the Court: a Motion to Compel and a Motion for Preliminary Injunction. (ECF Nos. 11 & 15.) The Court will address each in turn below.

II. MOTION TO COMPEL

On May 24, 2010, Plaintiff filed a Motion for Order Compelling Defendants to Reply to/Answer Plaintiff's Administrative Grievance and Inmate Requests for Interview. (ECF No. 11.) As of this date, the Court has not screened Plaintiff's Complaint, not authorized service of it, or issued an order initiating discovery in this case. Accordingly, Plaintiff's Motion to Compel is premature and DENIED on that grounds. Since Plaintiff's Complaint also complains of the same delay, if the Court finds that the Complaint states a cognizable claim, it may revisit Plaintiff's request for an order compelling a response.

III. MOTION FOR INJUNCTION

On August 6, 2010, Plaintiff filed a Motion for Order to Show Cause for a Preliminary Injunction. (ECF No. 15.) In it he seeks an order requiring Defendants to follow the prison policies and answer his grievance regarding inadequate dental care.

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 376 (2008) (citation omitted). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 374 (citations omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 376 (citation omitted) (emphasis added).

Federal courts are courts of limited jurisdiction and, in considering a request for preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no power to hear the matter in question. Id. "[The] triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998).

The standard for a permanent injunction is essentially the same as for a preliminary injunction, with the exception that the plaintiff must show actual success, rather than a likelihood of success. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). However, the Ninth Circuit has recently revived the "serious questions" sliding scale test, and ruled that a preliminary injunction may be appropriate when a plaintiff demonstrates serious questions going to the merits and the balance of hardships tips sharply in plaintiff's favor. Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1052-53 (9th Cir. 2010).

In cases brought by prisoners involving conditions of confinement, the Prison Litigation Reform Act (PLRA) requires that any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary ...


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