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Asberry v. Cate

United States District Court, Ninth Circuit

January 2, 2014

TONY ASBERRY CDCR #P-63853, Plaintiff,
v.
MATTHEW CATE, et aI., Defendants.

ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF Doc. No.2); 2) DENYING MOTION FOR INJUNCTIVE RELIEF PURSUANT TO FED.R.CIV.P. 65 (ECF Doc. No.3); AND 3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a)

WILLIAM Q. HAYES, District Judge.

Plaintiff, an inmate currently incarcerated at Richard J. Donovan Correctional Facility (RJD) in San Diego, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff alleges prison officials at RJD have provided him with inadequate medical treatment in violation of the Eighth Amendment since he was transferred there in March 2012. See Compl. (ECF Doc. No.1) at 4-14. Plaintiff further alleges that he "believes... RJD officials are [acting in] retaliation" for a previously-filed civil action and "602s." Id. at 14. Plaintiff seeks general and punitive damages as well as injunctive relief in the form of a court order directing Defendants to return his wheelchair. Id. at 17.

Plaintiff has not prepaid the $400 filing fee mandated by 28 U.S.C. § 1914(a);[1] instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No.2), accompanied by a Motion for Injunctive Relief (ECF Doc. No.3).

I.

MOTION TO PROCEED IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "Under the PLRA [Prison Litigation Reform Act], all prisoners who file IFP civil actions must pay the full amount of the filing fee, " regardless of whether the action is ultimately dismissed for any reason. See Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(1) & (2)).

In order to comply with the PLRA, prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint...." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D. CAL. CIvLR3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action...without prepayment of fees... shall submit a certified copy of the trust fund account statement (or institutional equivalent)... for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added).

Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee which is statutorily required to initiate the prosecution of this action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiffs Motion to Proceed IFP (ECF Doc. No.2) must be DENIED.

II.

MOTION FOR INJUNCTIVE RELIEF

In addition to the injunctive relief requested in his Complaint seeking the return of his wheelchair, see Compl. (ECF Doc. No.1) at 17, Plaintiff has also submitted a Motion for Injunctive Relief in which he requests the same pursuant to FED.R.CN.P. 65 (ECF Doc. No.3).

A. Legal Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (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 20 (citations omitted). An injunction "may only be awarded upon a clear showing that the plaintiff is entitled to relief." See id. at 22 (quotation omitted).

Pursuant to Federal Rule of Civil Procedure 65, an injunction "binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties' officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with [them]." FED.R.CIV.P. 65(d). In general, "[a] federal court may issue an injunction ifit has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court." Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1985).

One "becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure stating the time within which the party served must appear to defend." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916).

Moreover, "[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction. A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Caribbean Marine Servs. Co. v. Baldridge, 84 F.2d 668, 674 (9th Cir. 1988) (citations omitted).

B. Application to Plaintiff's Case

Federal Rule of Civil Procedure 65 permits issuance of a preliminary injunction "only upon notice to the adverse party." FED.R.CIV.P. 65(a)(1). Here, Plaintiff has provided the Court with no proof of service upon any party. Moreover, because Plaintiff has not been granted leave to proceed IFP, the Court has yet to determine whether the allegations in his Complaint survive the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A. Therefore, Court-ordered service upon any Defendant by the U.S. Marshal is premature. See 28 U.S.C. § 1915(d); FED.R.Clv.P. 4(c)(3). Thus, because no Defendant has yet to be served in this case, the Court simply enjoys no personal jurisdiction over any party at this time.

In addition, even if this Court had personal jurisdiction over the parties Plaintiff seeks to enjoin at this time, both his Complaint and his Motion for Injunctive Relief fail to establish the imminent irreparable injury required to support a preliminary injunction. See Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005). Where immediate injunctive relief is sought based on claims that governmental actors or agencies have violated the law in the past, as is the case here, Plaintiff must establish that the threat of future or repeated injury is both "real and immediate, " not just "conjectural" or "hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

Plaintiff alleges that since his transfer to RJD, Defendants have provided him inadequate medical care by classifying him as a "D.P.O." inmate-meaning that despite his medical condition, he is "capable of performing physical task[s], " and has the "abilit[y] to do things" Plaintiff claims he is "unable to perform." Pl.'s Mot. at 2. Plaintiff complains generally that while he has "on average submitted a CDCR 7362 "Health Care Services Request" 2-3 times per week, Defendants have yet to "fix his lower back, " have instead issued him a vest that reads "mobility impaired, " and on October 17, 2013, "took [his] wheelchair, " on grounds that his medical condition no longer required it. Id. at 4.

Plaintiff has not, however, shown how or why his situation poses a "real and immediate" threat of irreparable harm. Merely "[s]peculative injury [that] does not constitute irreparable injury [is] sufficient to warrant granting a preliminary injunction." Caribbean Marine Services Co., 844 F.2d at 674. "[I]njunctive relief is to be used sparingly, and only in a clear and plain case.'" Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976)).

Finally, Plaintiff has also not demonstrated he is "likely to succeed on the merits" of either an Eighth Amendment inadequate medical care or retaliation claim.[2] See Winter, 555 U.S. at 20; see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (finding a mere difference of opinion between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish the "deliberate indifference" required to support an Eighth Amendment violation); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (in order to support a claim of retaliation, prisoner must show: (1) he was retaliated against for exercising his constitutional rights, (2) the alleged retaliatory action "d[id] not advance legitimate penological goals, such as preserving institutional order and discipline, " and (3) the defendants' actions harmed him).

Thus, for all these reasons, the Court DENIES without prejudice Plaintiff's Motion for Injunctive Relief (ECF Doc. No.3) pursuant to FED.R.CIV.P. 65.

III.

CONCLUSION AND ORDER

For the reasons set forth above, IT IS ORDERED that:

(1) Plaintiffs Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No.2) is DENIED;

(2) Plaintiffs Motion for Injunctive Relief pursuant to FED.R.CIV.P. 65 (ECF Doc. No.3) is DENIED; and

(3) This civil action is DISMISSED without prejudice for failure to prepay the $400 filing fee mandated by 28 U.S.C. § I9I4(a).

However, Plaintiff if GRANTED an additional forty five (45) days from the date this Order is Filed to either: (1) pay the entire $400 filing fee, or (2) file a new Motion to Proceed IFP, which includes a certified copy of his trust account statement/or the 6-month period preceding the filing of his Complaint, pursuant to 28 U.S.C. § 19I5(a)(2) and S.D. CAL. ClvLR3.2(b).

IT IS FURTHER ORDERED that the Clerk of the Court shall provide Plaintiff with a Court-approved form "Motion and Declaration in Support of Motion to Proceed IFP" in this matter. If plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the attached Motion to Proceed IFP, together with a certified copy of his prison trust account statement within 45 days, this action shall remained dismissed without prejudice for the reasons set forth above and without any further Order of the Court.


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