United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION
LUCY H. KOH, District Judge.
Plaintiff, a California state prisoner proceeding prose, filed this civil rights action under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. For the reasons stated below, the court denies plaintiff's request for a preliminary injunction and orders service upon the defendants.
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 28 U.S.C. § 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 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that defendants denied plaintiffs request to change his ethnicity from "negro, " or "black" to "his true nationality of Moorish-American" so that plaintiff could meet the requirements of his Islamic religion. Plaintiff claims that the change is necessary to abide by his religious beliefs. Liberally construed, plaintiff states a cognizable claim that defendants violated plaintiffs right to free exercise of his religion and violated the Religious Land Use and Institutionalized Persons Act.
c. Preliminary Injunction/Temporary Restraining Order
Plaintiff moves for a preliminary injunction to prohibit defendants from using plaintiffs current status of "black" until the conclusion of this federal lawsuit. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction or temporary restraining order ("TRO"). However, prior to granting a preliminary injunction, 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). To the extent plaintiff is seeking a TRO, plaintiff has not satisfied the requirements necessary to grant such relief. See Fed.R.Civ.P. 65(b) (stating that a TRO may be granted without 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 movant before the adverse party can be heard in opposition; and (2) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required"). Plaintiffs request for a preliminary injunction or a TRO is DENIED without prejudice.
1. Plaintiffs request for a preliminary injunction or a TRO is DENIED without prejudice.
2. 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 Appeals Examiner K. Pool, Captain J.A. Zamora, Chief S.P. Albritten, CCII V. Wiggins, CCI T. Blanson, AW K. Mitchell, and CCRM S. Pangelinan at San Quentin 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 shall mail a copy of this order to plaintiff.
3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if defendants had been served on the date that the waiver is filed, and defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. Defendants are asked to read the statement set forth at the bottom of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date ...