Godoy v. Brown

          ORDER DENYING EX PARTE MOTION FOR IMMEDIATE AND PERMANENT OR TEMPORARY ORDER FOR INJUNCTION; DENYING MOTION FOR APPOINTMENT OF COUNSEL RE: DKT. NO. 29

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff, an inmate at Corcoran State Prison (“CSP”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Now pending before the Court is plaintiff's ex parte motion for immediate and permanent or temporary order for injunction; and motion for appointment of counsel. Dkt. No. 29. For the reasons set forth below, the Court DENIES these motions.

         BACKGROUND

         The Court dismissed the initial complaint and the amended complaint for failure to comply with Federal Rule of Civil Procedure 20(a) in that both complaints raised claims regarding various unrelated incidents that happened over several years at various different prisons. Dkt. Nos. 9, 28. Plaintiff's second amended complaint is due by December 24, 2019. Dkt. No. 28. Currently there is no operative complaint, and no defendants have been served.

         DISCUSSION

         I. Motion for Immediate and Permanent or Temporary Order for Injunction

         In his motion for injunctive relief, plaintiff makes the following allegations. In August 2019, while incarcerated at Substance Abuse Training Facility, prison guards manipulated or incited other inmates into harassing him and attempting to murder him; prison officials were deliberately indifferent to his serious medical needs; prison officials retaliated against him by spreading false inflammatory rumors about him, such as that he was a sex offender; prison officials confiscated his personal property and legal mail, and interfered with his access to the courts; and the law library denied him copies. Plaintiff also complains of the medical treatment provided (and not provided) by various chiropractors. Plaintiff was transferred to CSP where he continues to be the target of a conspiracy amongst correctional officials to retaliate against him and deny him medical care. Dkt. No. 29 at 1-9.

         Plaintiff seeks declaratory relief declaring that correctional officials have violated his federal constitutional rights and his state law rights, with the violations ranging from medical malpractice, medical negligence, deliberate indifference, retaliation, due process violations, search and seizure without a legal warrant, coercion, assault and battery. Dkt. No. 29 at 10-11. Plaintiff seeks an injunction requiring Warden Clark and all other defendants to provide him with adequate medical care, to stop all retaliatory actions, and to stop the illegal control of plaintiff's legal documents. Dkt. No. 29 at 12.

         Plaintiff's request for an injunction or temporary restraining order is DENIED for the following reasons.

         First, 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). Here, the amended complaint has been dismissed with leave to amend and no parties have yet been served. A TRO may be granted without written or oral 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 applicant before the adverse party or the party's attorney can be heard in opposition, and (2) the applicant's attorney certifies in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b). Plaintiff has failed to satisfy either of these requirements. With respect to the first requirement, plaintiff's motion recounts events that happened while he was housed at a different facility, SATF. Plaintiff has since been transferred out of that facility. His conclusory allegation that there is a conspiracy amongst prison officials at different facilities is insufficient to show an immediate and irreparable injury, loss or damage will result before the adverse party can be heard in opposition.

         Second, a preliminary injunction is appropriate when it grants relief of the same nature as that to be finally granted. Pacific Radiation Oncology, LLC v. Queen's Medical Center, 810 F.3d 631, 636 (9th Cir. 2015). Here, it is not yet certain what relief this action seeks because there is no operative complaint.

         Accordingly, the request for injunctive relief or a temporary restraining order is DENIED.

         II. Motion for ...