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Dwayne Swearington v. California Department of Corrections and Rehabilitation

October 31, 2012

DWAYNE SWEARINGTON,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANT.



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

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR EMERGENCY

I. PROCEDURAL HISTORY

INJUNCTIVE RELIEF (ECF Nos. 13)

Plaintiff Dwayne Swearington is a state prisoner proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action originally filed on April 23, 2012 in the United States District Court for the Northern District of California (Letter Compl., ECF No. 1) and transferred to this Court. (Order Transfer, ECF No. 4.) Plaintiff has consented to Magistrate Judge jurisdiction. (Consent Jurisdiction, ECF No. 8.)

The Court screened the Complaint on July 27, 2012 and dismissed it for failure to state a claim but gave leave to file an amended complaint. (Order Dismiss. Compl., ECF No. 9.) Plaintiff filed a First Amended Complaint on September 27, 2012. (First Am. Compl., ECF No. 14.) The Court also screened and dismissed the First Amended Complaint for failure to state a claim and again gave leave to amend. (Order Dismiss. First Am. Compl., ECF No. 15.) Plaintiff has not yet filed a second amended complaint.

Pending before the Court is Plaintiff's "Emergency Injunctive Motion For Relief, For and Against Continuous Obstruction By CMC, and NKSP Appeal's Offices Conspiring to Deny Access To The Court." (Motion for Emergency Injunction, ECF No. 13.)

Plaintiff seeks injunctive relief against the appeals coordinator offices at California Men's Colony-East ("CMC") and North Kern State Prison ("NKSP") and asks that the Court "allow [the prison appeal documents included as exhibits to the Motion] to be submitted so that the court can take action on the injunctive relief and stop the acts and actions of CMC, and NKSP State Prison's obstruction" (Mot. Emerg. Inj. at 3:16-18.) He also asks for an order that he be moved to a medical prison so he can receive appropriate medical attention. Id. at 3:19-21.

Defendants have not filed any opposition. The time for doing so has passed. Local Rule 230. Plaintiff's Motion for Emergency Injunction is now before the Court.

II. LEGAL STANDARD

Injunctive relief, whether temporary or permanent, is an "extraordinary remedy, never awarded as of right." Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (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." Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), (quoting Winter, 555 U.S. at 20.) An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter, 555 U.S. at 22.

Requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act ("PLRA"), which requires that the Court find the "relief [sought] is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right."

Injunctive relief should be used "sparingly, and only . . . in clear and plain case[s]." Rizzo v. Goode, 423 U.S. 362, 378 (1976).

III. ARGUMENT

Plaintiff contends unidentified staff in the appeals coordinator offices and mailrooms at CMC and NKSP interact and conspire to improperly handle and remove legal documents from his unspecified CDC Forms 22 and 602,*fn1 staff complaints,*fn2 and from his cell, preventing Plaintiff from appropriately and timely exhausting his administrative remedies, (Motion for Emergency Injunction at 1:25-2:4), preventing his access to the court in unspecified ...

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