Le v. Sandor et al

Filing 8

ORDER Denying Motion For Order To Show Cause And Temporary Restraining Order (ECF No. 6 ), signed by Magistrate Judge Barbara A. McAuliffe on 9/30/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY LE,

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Plaintiff,
v.
G. SANDOR, et al.,
Defendants.

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Case No.: 1:14-cv-01464-BAM (PC)
ORDER DENYING MOTION FOR ORDER TO
SHOW CAUSE AND TEMPORARY
RESTRAINING ORDER
(ECF No. 6)

Plaintiff Danny Le (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 19,

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2014. Plaintiff’s complaint concerns allegations of deliberate indifference to his health and safety.

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On September 24, 2014, Plaintiff filed a document entitled “Order to Show Cause &

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Temporary Restraining Order.” (ECF No. 6, p. 1.) The document appears to be a proposed order to

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show cause and temporary restraining order against Defendants Sandor, Goree and Cribbs for the

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Court’s signature. (ECF No. 6, pp. 1-2.) Insofar as Plaintiff’s document is construed as a motion for

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temporary restraining order and preliminary injunction, the motion is deficient and shall be denied

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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 Defendant

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Sandor should arrange for Plaintiff to get his fan from his property and that Defendants should appear

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and show cause why a preliminary injunction should not issue requiring them to provide “all remedies

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to appropriately keep Plaintiff from overheating on heat meds while in Ad-Seg.” (ECF No. 6, p. 1.)

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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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The Court will screen Plaintiff’s complaint in due course. There are hundreds of prisoner civil rights

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cases presently pending before the Court, and delays are inevitable despite the Court's best efforts.

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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 September 24, 2014, is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

September 30, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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