Brooks v. Tate

Filing 29

ORDER Denying Plaintiff's Motions 9 , 25 ; ORDER Directing Clerk of the Court to File Plaintiff's Amended Complaint, signed by Magistrate Judge Dennis L. Beck on 11/26/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY BROOKS,

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Plaintiff,

Case No. 1:11-cv-01503-AWI-DLB PC
ORDER DENYING PLAINTIFF’S
MOTIONS (ECF Nos. 9, 25)

v.
HAROLD TATE, et al.,

ORDER DIRECTING CLERK OF THE
COURT TO FILE PLAINTIFF’S
AMENDED COMPLAINT (ECF No. 16)

Defendants.

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Plaintiff Rodney Brooks (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis

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in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant Harold

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Tate for retaliation in violation of the First Amendment and deliberate indifference to a serious

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medical need in violation of the Eighth Amendment.

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On October 14, 2011, Plaintiff filed a motion for preliminary injunction. ECF No. 9. On

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August 9, 2012, Plaintiff filed a second motion for preliminary injunction. ECF No. 15. Both

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motions concerned the same subject matter. On October 10, 2012, the Court ordered Plaintiff to

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notify the Court as to which motion he wished to proceed. ECF No. 24. On October 24, 2012,

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Plaintiff notified the Court that he wished to proceed with the August 9, 2012, motion. Accordingly,

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Plaintiff’s motion for preliminary injunction, filed October 14, 2011, is denied as withdrawn.

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On October 9, 2012, Plaintiff filed a motion requesting that the Defendant answer Plaintiff’s
timely filed amended complaint. ECF No. 25. Plaintiff’s motion will be denied without prejudice.
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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” Id. § 1915(e)(2)(B)(ii). Prior to requiring Defendant Tate

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to respond to Plaintiff’s amended complaint, the Court will first screen it pursuant to § 1915A(a) and

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§ 1915(e)(2)(B).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for preliminary injunction, filed October 14, 2011, is deemed moot as

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withdrawn by Plaintiff;
2. Plaintiff’s motion for the Defendant to answer Plaintiff’s amended complaint, filed

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October 9, 2012, is denied without prejudice; and
3. The Clerk of the Court is directed to file Plaintiff’s amended complaint, lodged on

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August 9, 2012, at ECF No. 16.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

November 26, 2012

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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