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Raul Ernest Alonso-Prieto v. B Pierce

March 5, 2012

RAUL ERNEST ALONSO-PRIETO,
PLAINTIFF,
v.
B PIERCE, ET AL., DEFENDANTS.



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

ORDER DENYING PLAINTIFF'S MISCELLANEOUS MOTIONS (ECF NOS. 12, 13)

I. PROCEDURAL HISTORY

Raul Ernest Alonso-Prieto ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action filed on January 6, 2011 pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff filed a First Amended Complaint on April 18, 2011. The Court has yet to screen the First Amended Complaint or order service.

Before the Court are (1) Plaintiff's Motion of Inquiry (ECF No. 12), and (2) Plaintiff's Motion for Immediate Action or in the Alternative Service of Complaint and Summons. (ECF No. 13.)

II. ANALYSIS

A. Status and Service

Plaintiff alleges in his Motion of Inquiry that he filed his Amended Complaint prior to April 30, 2011 as ordered by the Court and has yet to be advised as to the posture of the case.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). The Court will direct the United States Marshal to serve Plaintiff's Amended Complaint only after the Court has screened it and determined that it contains cognizable claims for relief against the named Defendants. "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action or appeal ... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

The Court is aware of Plaintiff's action and his Amended Compliant is in line for screening. However, the Court has a large number of prisoner civil rights cases pending before it and will screen Plaintiff's Complaint in due course. Until such time as the Court has screened Plaintiff's Amended Complaint, no further action is required.

Accordingly, Plaintiff's Motion of Inquiry (ECF No. 12) is DENIED.

B. Immediate Action

Plaintiff alleges in his Motion for Immediate Action that this case has been pending for over nine months and the Court has not ordered service. He seeks immediate service of summons, or alternatively that the Court grant the return of his property, money damages and injunctive relief as prayed for in his First Amended Complaint.

The Court will not order service for the reasons described above. The Court will not direct service by the United States Marshal absent a pleading containing cognizable claims for relief against the named Defendants.

Nor does Plaintiff appear entitled to injunctive relief were his motion to be construed as a request for such. "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). "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." ...


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