(PC) Luedtke v. Griesbach et al

Filing 13

ORDER DENYING Plaintiff's 5 Motion for Order signed by Magistrate Judge Helena M. Barch-Kuchta on 07/15/02021. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES LUEDTKE, 12 13 14 15 Plaintiff, Case No. 1:21-cv-00718 ORDER DENYING PLAINTIFF’S MOTION FOR ORDER v. (Doc. No. 5) WILLIAM GRIESBACH, ET. AL., Defendants. 16 17 Pending before the Court is Plaintiff’s “Motion for Order,” which was delivered to 18 correctional officials for mailing on May 12, 2021. (Doc. No. 5, “Motion”). Plaintiff, a federal 19 prisoner, states he first noticed “blood in the toilet” on April 1, 2021, and “sent medical a[n] 20 email about the internal bleeding” on April 21, 2021. (Id. at 1). Plaintiff acknowledges he “was 21 called to the medical” on April 30, 2021, weighed, and then sent back to his unit. (Id.). Plaintiff 22 states, “no action has been taken to remedy the internal bleeding” and requests the Court to order 23 the Warden of Atwater Federal Correctional Institution to provide Plaintiff with medical care at 24 an “outside hospital.” (Id. at 1-2). 25 Other than citing to Fed. R. Civ. P. 8, the Motion otherwise fails to identify any legal 26 authority to support the Motion. (See Doc. 5 at 1). Plaintiff acknowledges he was called to the 27 medical department after he emailed them complaints about his bleeding. (Id. at 1). Plaintiff 28 does not state he is otherwise suffering any other physical symptoms. (See generally Id.). It 1 appears Plaintiff disagrees with the medical care he is being provided. Thus, in addition to 2 having other remedies available to him, Plaintiff’s claim is not “clear and certain” to warrant 3 mandamus relief. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (finding a writ 4 of mandamus appropriate only when (1) the petitioner’s claim is “clear and certain”; (2) the 5 respondent official's duty to act is ministerial and (3) no other adequate remedy is available.). 6 To the extent Plaintiff intended the Motion to seek preliminary injunctive relief, the 7 Motion is wholly deficient as Plaintiff neither identifies, nor even attempts to establish, the 8 factors to prevail on such a motion. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 9 (2008); see also 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act. Further, a 10 motion seeking preliminary injunctive relief would be premature since Plaintiff has not been 11 granted to leave to proceed in forma pauperis, he has not paid the filing fee, and his Complaint 12 has not proceeded past the screening stage. 13 Accordingly, it is ORDERED: 14 Plaintiff’s Motion for Order (Doc. No. 5) is DENIED. 15 16 17 Dated: July 15, 2021 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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