Spencer v. Clark et al

Filing 30

ORDER Plaintiff's Motion for Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order (Doc. 29 ) is dismissed, and this case shall remain closed. The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Senior Judge Stephen M McNamee on 2/4/2015.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Clinton Lee Spencer,

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No. CV 14-0032-PHX-SMM (ESW)

Plaintiff,
v.

ORDER

K. Clark, et al.,

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Defendants.

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On January 7, 2014, Plaintiff Clinton Lee Spencer, who is confined in the Arizona

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State Prison Complex-Tucson, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In a September 10, 2014

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Order, the Court granted the Application to Proceed and dismissed the Complaint

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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

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amended complaint that cured the deficiencies identified in the Order. On September 24,

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2014, Plaintiff filed his First Amended Complaint. In a January 13, 2015 Order, the

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Court dismissed the First Amended Complaint and this action for failure to state a claim.

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That same day, the Clerk of Court entered judgment and dismissed this case with

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prejudice. On January 20, 2015, Plaintiff filed a Motion for Order to Show Cause for a

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Preliminary Injunction and a Temporary Restraining Order (Doc. 29). The Court will

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deny the motion and this action shall remain closed.

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In his motion, Plaintiff asks the Court to order the Defendants to provide Plaintiff

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with the treatment he “need[s] to receive for his diabetes.” Before seeking injunctive

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relief, Plaintiff must first have a complaint pending before the Court. See Stewart v.

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United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985)

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(“Only after an action has been commenced can preliminary injunctive relief be

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obtained.”); see also Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)

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(a party seeking injunctive relief must establish a relationship between the claimed injury

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and the conduct asserted in the complaint).

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In addition, a temporary restraining order without notice may be granted only if

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“specific facts in an affidavit or verified complaint clearly show that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can

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be heard” and the movant certifies to the court in writing any efforts made to give notice

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and the reasons that notice should not be required. Fed. R. Civ. P. 65(b)(1). A “court

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may only issue a preliminary injunction on notice to the adverse party.” Fed. R. Civ. P.

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65(a)(1).

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Plaintiff has not provided notice, nor does he explain why notice should not be

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required. Moreover, because the Court has dismissed this action, there is currently no

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complaint pending before the Court. Accordingly, Plaintiff’s motion is not properly

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before the Court, and it will be denied.

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IT IS ORDERED:

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(1)

Plaintiff’s Motion for Order to Show Cause for a Preliminary Injunction

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and a Temporary Restraining Order (Doc. 29) is dismissed, and this case shall remain

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closed.

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(2)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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DATED this 4th day of February, 2015.

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