United States District Court, E.D. California
ORDER DENYING PLAINTIFF’S MOTION TO SET HEARING
ON SPEEDY TRIAL; NOTICE TO COMMENCE ACTION FOR DEPOSITIONS
(ECF NO. 11) FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL
OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (ECF
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Gary Ray Bettencourt (“Plaintiff”) is a state
prisoner proceeding pro se and in forma in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff initiated
this action on February 2, 2016. Plaintiff’s complaint
concerns allegations of deliberate indifference to serious
medical needs, specifically dental matters.
Motion to Set Hearing on Speedy Trial
August 1, 2016, Plaintiff filed a motion entitled,
“Motion to Set Hearing on Speedy Trial; Notice to
Commence Action for Depositions, ” requesting this
matter be scheduled for a jury trial and that discovery
commence. (ECF No. 11.) This matter has not been screened and
no defendants have appeared in this action. The motion is
deemed submitted. Local Rule 230(1).
to the extent that Plaintiff is attempting to invoke Sixth
Amendment speedy trial rights, such rights apply to criminal
proceedings and not to civil cases, like this one.
See Los Angeles County Bar Ass’n v.
Eu, 979 F.2d 697, 706-707 (9th Cir.1992); Lietzke v.
City of Montgomery. No. 12CV0135, 2012 WL 2327708, at *2
(D. Ida. June 19, 2012) (citing 18 U.S.C. § 3161).
Second, Plaintiff’s requests to begin discovery and set
this matter for trial are premature. 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).
Plaintiff’s complaint, or any portion thereof, is
subject to dismissal if it is frivolous or malicious, if it
fails to state a claim upon which relief may be granted, or
if it seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28
U.S.C. § 1915(e)(2)(B)(ii).
as noted above, the Court has not yet screened
Plaintiff’s complaint to determine whether it is
subject to dismissal, or whether the action should proceed to
discovery on Plaintiff’s claims. Therefore,
Plaintiff’s motion shall be denied. The Court will
screen Plaintiff’s complaint in due course.
Motion for Preliminary Injunction
February 29, 2016, Plaintiff filed a motion for a preliminary
injunction against Defendants L. Parker, DDS; H. Crooks, DDS;
and L. Guzman, dental assistant. Plaintiff argues that all of
his claims in his complaint are true, and that Defendants
should be investigated, arrested for criminal prosecutions
and have their wages garnished. (ECF No. 5.)
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365,
376 (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. Id. at 22 (citation omitted).
initial matter, “a court has no power to adjudicate a
personal claim or obligation unless it has jurisdiction over
the person of the defendant.” Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct.
1562 (1969); S.E.C. v. Ross, 504 F.3d 1130, 1138-39
(9th Cir. 2007). In this case, as discussed, the Court has
not screened Plaintiff’s complaint to determine whether
it states a cognizable claim. Further, no defendant has been
ordered served and no defendant has yet made an appearance.
At this juncture, the Court lacks personal jurisdiction over
the defendants and it cannot issue an order requiring them to
take any action. Zenith Radio Corp., 395 U.S. at
110; Ross, 504 F.3d at 1138-39.
to the extent Plaintiff seeks injunctive “relief”
in the form of a criminal investigation or prosecution, it
cannot be obtained through this action. The Court cannot
compel any local prosecutor to investigate or instigate a
criminal prosecution of this matter. See,
e.g., Badwi v. Hedgpeth, No. C 08-02221 SBA
PR, 2011 WL 89729, at *1 (N.D. Cal. Jan. 11, 2011). To the
extent Plaintiff seeks any portion of Defendants’
“wages, ” that is a claim for monetary damages,
not for injunctive relief.
these reasons, the Court shall recommend that
Plaintiff’s motion for a preliminary injunction, filed
on February 29, 2016, be denied. Plaintiff will be given
fourteen (14) days to file any objections to this
reasons explained above, the Court HEREBY ORDERS that
Plaintiff’s Motion to Set Hearing on Speedy Trial;
Notice to Commence Action for Depositions, ...