United States District Court, N.D. California
JAMES E. WILLIAMS, Plaintiff,
R. MACK, Defendant.
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; DENYING MOTION FOR PRELIMINARY INJUNCTION
RONALD M. WHYTE, District Judge.
Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed in forma pauperis in a separate order. For the reasons below, the court orders service upon defendant.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).
B. Plaintiff's Claim
In his complaint, plaintiff alleges that, on three separate occasions, defendant discontinued plaintiff's prescription for morphine and replaced it with methadone to control plaintiff's pain. After plaintiff had informed defendant that plaintiff suffered an allergic reaction to the methadone, including an allergic outbreak and an elevated heart rate, defendant ignored plaintiff's reaction and continued to prescribe methadone. Liberally construed, plaintiff has stated a cognizable claim of deliberate indifference to a serious medical need.
C. Motion for Preliminary Injunction
Plaintiff has also filed a motion for preliminary injunction and temporary restraining order. Specifically, plaintiff requests that Dr. Chin, a doctor at Kern Valley State Prison, is denying plaintiff adequate pain relief. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction or temporary restraining order. Prior to granting a preliminary injunction, however, notice to the adverse party is required. See Fed.R.Civ.P. 65(a)(1). Therefore, a motion for preliminary injunction cannot be decided until the parties to the action are served. See Zepeda v. INS , 753 F.2d 719, 727 (9th Cir. 1983). Here, the defendant has not yet been served. Moreover, Dr. Chin is not a party to this action. Should plaintiff wish to file suit regarding his claims at Kern Valley State Prison, he shall do so in a separate proceeding in the Eastern District of California. Plaintiff's motion for preliminary injunction is DENIED without prejudice.
For the foregoing reasons, the court hereby orders as follows:
1. The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1), and a copy of this order to Dr. R. Mack at Salinas Valley State Prison.
The clerk of the court shall also mail a courtesy copy of the complaint and a copy of this order to the California Attorney General's Office. Additionally, the clerk ...