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Anthony Arceo v. Dr. Smith

January 29, 2011

ANTHONY ARCEO,
PLAINTIFF,
v.
DR. SMITH, ET AL.,
DEFENDANTS.



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

ORDER DENYING MISCELLANEOUS MOTIONS (ECF Nos. 3 & 9)

ORDER

I. PROCEDURAL HISTORY

Plaintiff Anthony Acreo ("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 Complaint on March 5, 2010. (ECF No. 1.) He consented to Magistrate Judge jurisdiction on April 16, 2010. (ECF No. 8.) No other parties have appeared in this action. The Court has not yet screened Plaintiff's Complaint.

Pending before the Court are Plaintiff's "Motion to File Enlarged Medical and Appeal Writ for Damages, Injunction, and Trial" and Motion for Injunction and Temporary Restraining Order. (ECF Nos. 3 & 9.)

II. MOTION FOR ENLARGEMENT

The Court is not certain what relief Plaintiff seeks in this motion. Plaintiff states that he would like to file an extraordinary writ for "denial of healthcare and appeal." Plaintiff goes on to state that he could only obtain 25-lined paper, not 28, and that he exceeded the page limit by four.*fn1 He requests that the Court take judicial notice, but does not identify what he wants the Court to judicially notice.

The Court construes Plaintiff's Motion as a request that his Complaint be accepted by the Court even though he believes it exceeds the Court's page limitation. Plaintiff's Complaint has been filed. It is in line for screening by the Court. All pages of it will be considered when it is screened Accordingly, as construed, Plaintiff's Motion is MOOT and DENIED on that ground.

If the Court misconstrued Plaintiff's Motion, Plaintiff is free to re-file it. However, Plaintiff should be more specific in his request. He must also keep in mind that the relief he seeks in his Complaint will not be addressed until it is screened.

III. MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff appears to be asking the Court to stop prison officials from going through, tampering with, vandalizing, and destroying his personal property. Plaintiff is also asking that Officer Priciotta be removed from "Tuolumne Yard 'building five' for retaliation." (ECF No. 9, p. 3.)

A temporary restraining order (TRO) 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 the party's attorney can be heard in opposition, and (2) the applicant (or his attorney) certifies in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required. See Fed.R.Civ.P. 65(b).

The standards for a TRO are essentially the same as that for a preliminary injunction. To be entitled to preliminary injunctive relief, a party must demonstrate "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." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)). The Ninth Circuit has also held that the "sliding scale" approach applies to preliminary injunctions as it relates to the showing a plaintiff must make regarding his chances of success on the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1052-53 (9th Cir. 2010). Under this sliding scale, the elements of the preliminary injunction test are balanced. As it relates to the merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. Id.

In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive ...


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