United States District Court, N.D. California
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
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.
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.
Motion for Immediate and Permanent or Temporary Order for
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.
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.
request for an injunction or temporary restraining order is
DENIED for the following reasons.
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.
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
the request for injunctive relief or a temporary restraining
order is DENIED.
Motion for ...