Torres v. Waddel

Filing 13

ORDER DENYING Motion for Temporary Restraining Order and Preliminary Injunction Without Prejudice 4 , signed by Magistrate Judge Barbara A. McAuliffe on 10/6/14: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO TORRES,

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Plaintiff,

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v.

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WADDEL, et al.,

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Defendants.

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Case No.: 1:14-cv-01217-BAM (PC)
ORDER DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION WITHOUT PREJUDICE
(ECF No. 4)

Plaintiff Gustavo Torres (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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August 4, 2014. Plaintiff’s complaint concerns allegations of deliberate indifference to his health and

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safety. Plaintiff has consented to the jurisdiction of the United States Magistrate Judge. (ECF No. 8.)

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On August 4, 2014, Plaintiff also filed a document entitled “Order to Show Cause for An

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Preliminary injunction & A Temporary Restrain[in]g Order” (ECF No. 4, p. 1.) The document

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appears to be a proposed order to show cause and injunction against Defendant Waddel and other

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unnamed defendants for the Court’s signature. (ECF No. 4, p. 2.) Insofar as Plaintiff’s document is

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construed as a motion for temporary restraining order and preliminary injunction, the motion is

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deficient and shall be denied without prejudice to refiling.

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The analysis for a temporary restraining order is substantially identical to that for a preliminary

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injunction, Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 (9th

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Cir. 2001), and “[a] preliminary injunction is an extraordinary remedy never awarded as of right.”

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376 (2008) (citation

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omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citations

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omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to

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relief. Id. at 22 (citation omitted).

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Here, Plaintiff’s proposed order does not establish that he is likely to succeed on the merits or

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suffer irreparable harm in the absence of an injunction, that the balance of equities tips in his favor or

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that an injunction is in the public interest. Rather, the proposed order merely states that Defendants

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should be restrained from “[c]ausing more harm at the hands of cellmates.” (ECF No. 2, p. 2.)

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Additionally, “a court has no power to adjudicate a personal claim or obligation unless it has

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jurisdiction over the person of the defendant.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395

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U.S. 100, 110, 89 S.Ct. 1562 (1969); S.E.C. v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007). In this

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case, the Court has not screened Plaintiff’s complaint to determine whether it states a cognizable

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claim, no defendant has been ordered served and no defendant has yet made an appearance. At this

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juncture, the Court lacks personal jurisdiction over the defendants and it cannot issue an order

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requiring them to take any action. Zenith Radio Corp., 395 U.S. at 110; Ross, 504 F.3d at 1138-39.

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Plaintiff has requested leave to amend and the Court will screen any amended complaint in due course

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after its filing.

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For these reasons, Plaintiff’s motion for a temporary restraining order and a preliminary

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injunction, filed on August 4, 2014, is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

October 6, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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