United States District Court, N.D. California
ORDER OF SERVICE; DENYING MOTIONS FOR PRELIMINARY
INJUNCTION AND APPOINTMENT OF COUNSEL RE: DKT. NOS. 3,
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.
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. 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.
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.
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.
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).
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.
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
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.
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
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 ...