Brown v. Beard et al

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 09/22/15 granting 9 Motion to Proceed IFP and denying 3 Motion for Preliminary Injunction. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Also, DIRE CTING MONTHLY PAYMENTS be made from Prison Account of Lance L. Brown. CDC is to collect payments from plaintiff's account and forward to the clerk until the $350.00 filing fee is paid in full. Clerk to serve this order and a copy of plaintiff's IFP on the Director of CDC. Clerk to also serve Financial with a copy of this order. (cc: CDC Director and Financial) (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LANCE L. BROWN,

12
13

No. 2:15-cv-0370-CMK-P

Plaintiff,
vs.

ORDER

14

JEFFREY BEARD, et al.,

15

Defendant.
/

16
17

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

18

U.S.C. § 1983. Pending before the court is plaintiff’s request for leave to proceed in forma

19

pauperis (Doc. 9) and motion for preliminary injunction (Doc. 3).

20
21

Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). The request to proceed in forma pauperis will, therefore, be granted.

22
23

To:

The California Department of Corrections and Rehabilitation
1515 S Street, Sacramento, California 95814:

24
25
26

Plaintiff is obligated to pay the full statutory filing fee of $350.00 for this action.
In addition to any initial partial filing fee required to be assessed, plaintiff will be obligated to
1

1

make monthly payments in the amount of twenty percent of the preceding month’s income

2

credited to plaintiff’s inmate trust account. The agency referenced above is required to send to

3

the Clerk of the Court the initial partial filing fee and thereafter payments from plaintiff’s inmate

4

trust account each time the amount in the account exceeds $10.00, until the statutory filing fee of

5

$350.00 is paid in full. See 28 U.S.C. § 1915(b)(2).

6

To the extent plaintiff is requesting a preliminary injunction order, however, his

7

motion is insufficient. His request, docketed as a motion, consists solely of a proposed order.

8

There is in fact no motion, signed by plaintiff, setting forth the grounds for the court to consider.

9

The document titled declaration in support of preliminary injunction declaration is not a

10

declaration, is not signed by plaintiff, and is written as an order for the court to sign. Such a

11

filing is simply insufficient.

12

The legal principles applicable to requests for injunctive relief, such as a

13

temporary restraining order or preliminary injunction, are well established. To prevail, the

14

moving party must show that irreparable injury is likely in the absence of an injunction. See

15

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

16

Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

17

standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

18

controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

19

1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

20

likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

21

injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

22

interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

23

Accordingly, IT IS HEREBY ORDERED that:

24

1.

25

granted;

26

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 9) is

///
2

1
2
3

2.

Plaintiff is required to pay the full statutory filing fee of $350.00 for this

action pursuant to 28 U.S.C. §§ 1914(a) and 1915(b)(1);
3.

The director of the agency referenced above, or a designee, shall collect

4

from plaintiff’s inmate trust account an initial partial filing fee in accordance with the provisions

5

of 28 U.S.C. § 1915(b)(1) and shall forward the amount to the Clerk of the Court, such payment

6

to be clearly identified by the name and number assigned to this action;

7

4.

Thereafter, the director of the agency referenced above, or a designee, shall

8

collect from plaintiff's inmate trust account the balance of the filing fee by collecting monthly

9

payments from plaintiff's inmate trust account in an amount equal to twenty percent (20%) of the

10

preceding month's income credited to plaintiff’s inmate trust account and forwarding payments to

11

the Clerk of the Court each time the amount in the account exceeds $10.00 in accordance with 28

12

U.S.C. § 1915(b)(2), until the $350.00 filing fee for this action has been paid in full, such

13

payments to be clearly identified by the name and number assigned to this action;

14
15
16
17
18

5.

The Clerk of the Court is directed to serve a copy of this order and a copy

of plaintiff's signed in forma pauperis affidavit to the address shown above;
6.

The Clerk of the Court is further directed to serve a copy of this order on

the Financial Department of the court; and
7.

Plaintiff’s motion for preliminary injunction (Doc. 3) is denied.

19
20
21
22

DATED: September 22, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
3