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Taylor v. Cano

United States District Court, N.D. California

November 8, 2017

BRIAN LEE TAYLOR, Plaintiff,
v.
X. CANO, et al., Defendants.

          ORDER OF SERVICE; DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND APPOINTMENT OF COUNSEL RE: DKT. NOS. 3, 4

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff, a California prisoner, filed this pro se civil rights complaint under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison and the California Department of Corrections and Rehabilitation.[1] Plaintiff's application to proceed in forma pauperis is granted in a separate order. For the reasons explained below, the complaint is ordered served upon Defendants.

         STANDARD OF REVIEW

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 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. West v. Atkins, 487 U.S. 42, 48 (1988).

         LEGAL CLAIMS

         Plaintiff alleges that prison officials incorrectly designated him as an inmate who had sexually assaulted a minor. While the officials' decision was made in 2010, Plaintiff did not receive notice of the hearing upon which the decision was based, nor did he learn of his designation until 2016, when he was informed that he could no longer receive visits from minors, including his nieces and nephews. Plaintiff further alleges that his designation as a sex offender against a minor puts him in danger of an attack from other inmates. Plaintiff claims that his federal constitutional rights to due process and to free from cruel and unusual punishment were violated. When liberally construed, these claims are cognizable under 42 U.S.C. § 1983.

         Plaintiff has filed a motion for a preliminary injunction. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction. 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). As the Defendants have not yet been served, the motion for a preliminary injunction is DENIED.

         Plaintiff has filed a motion for appointment of counsel. Plaintiff is capable of presenting his claims effectively, and the issues, at least at this stage, are not complex. The motion DENIED.

         CONCLUSION

         1. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form and the United States Marshal shall serve, without prepayment of fees, the summons, Magistrate Judge jurisdiction consent form, a copy of the complaint with attachments, and a copy of this order on X. Cano, J. Medellin, Vacarra, R. Sherrill, D. Bermudez, R. Monroy, R. Ahumada, H. Aguilera, at Salinas Valley State Prison, and on Scott Kernan at the California Department of Corrections and Rehabilitation.

         The Clerk shall also mail a courtesy copy of the Magistrate Judge jurisdiction consent form, the complaint with all attachments and a copy of this order ...


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