Grimes v. Mule Creek State Prison Health Care et al

Filing 66

ORDER signed by Magistrate Judge Dale A. Drozd on 03/17/15 ordering plaintiff's motion for an automatic extension of time 57 is denied as unnecessary. Plaintiff's motion to compel 60 is denied as untimely. Plaintiff's motion for a preliminary injunctive relief 58 is denied without prejudice. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JAMES GRIMES,

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No. 2:12-cv-0937 DAD P

Plaintiff,
v.

ORDER

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RICHARD RIVERMAN et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action against defendants Dr. Naseer and Dr. Soltanian. Pending before the court are several of

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plaintiff‟s motions.

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First, plaintiff has filed a motion for an automatic extension of time to respond to all court

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orders and filings by defense counsel in this action. In his motion, plaintiff alleges that he has

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experienced delays in receiving his mail. The court will deny plaintiff‟s motion as unnecessary.

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If plaintiff believes he needs additional time to respond to future court orders or motions and

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filings by defense counsel he may request an extension of time from the court at that time.

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Next, plaintiff has filed a motion to compel. According to the court‟s discovery and

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scheduling order, however, the parties were required to file all discovery motions on or before

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November 28, 2014. Plaintiff has not filed a motion to modify the court‟s scheduling order. See

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Johnson v. Mammoth Re-creations, 975 F.2d 604, 608 (9th Cir. 1992). Nor has plaintiff
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otherwise shown good cause at this late date to modify the scheduling order as required. See id.

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Accordingly, the court will deny plaintiff‟s motion to compel as untimely.

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Finally, plaintiff has filed a motion for preliminary injunctive relief. In the motion,

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plaintiff complains about the medical care he is receiving from a Dr. Tran. Plaintiff seeks a court

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order directing the Warden or Chief Medical Officer to stop making him see Dr. Tran for medical

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treatment. (Pl.‟s Mot. for Prelim. Inj. at 1-8.)

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The court will deny plaintiff‟s motion without prejudice. As an initial matter, plaintiff‟s

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motion does not comply with Local Rule 231, which requires that a motion for preliminary

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injunctive relief be accompanied by: (1) a declaration signed under penalty of perjury on the

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question of irreparable injury; (2) a memorandum of points and authorities addressing all legal

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issues raised by the motion; and (3) evidence of notice to all persons who would be affected by

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the order sought. See Local Rule 231(d).

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Moreover, plaintiff‟s allegations in support of his motion for a preliminary injunction are

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against a non-party doctor. In addition, plaintiff seeks a court order against his warden or the

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Chief Medical Officer to stop making him see Dr. Tran for medical treatment. Plaintiff is advised

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that this court is unable to issue an order against any entity or individual who is not a party to a

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suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 112 (1969);

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Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court

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may issue an injunction if it has personal jurisdiction over the parties and subject matter

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jurisdiction over the claim; it may not attempt to determine the rights of persons not before the

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court.”).

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Finally, “[t]he proper legal standard for preliminary injunctive relief requires a party to

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demonstrate „that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.‟” Stormans v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009)

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(quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). Here, plaintiff‟s

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allegations concerning Dr. Tran‟s medical care fail to state a claim for relief for deliberate

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indifference let alone demonstrate a likelihood of success on the merits of such a claim. See
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Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (mere difference of opinion between a

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physician and the prisoner does not amount to deliberate indifference), overruled on other

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grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014); Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). Accordingly, the court will deny plaintiff‟s motion for preliminary

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injunctive relief.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion for an automatic extension of time (Doc. No. 57) is denied as

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unnecessary;
2. Plaintiff‟s motion to compel (Doc. No. 60) is denied as untimely; and

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3. Plaintiff‟s motion for a preliminary injunctive relief (Doc. No. 58) is denied without

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prejudice.

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Dated: March 17, 2015

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DAD:9
grim0937.mots

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If plaintiff is still dissatisfied with his medical care, he should seek relief through the
administrative grievance process at his institution of incarceration. See Cal. Code Regs. tit. 15, §
3084.1(a) (prisoners may appeal “any policy, decision, action, condition, or omission by the
department or its staff that the inmate or parolee can demonstrate as having a material adverse
effect upon his or her health, safety, or welfare.”).
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