Jackson v. Galang et al

Filing 30

ORDER signed by Magistrate Judge Craig M. Kellison on 7/5/2016 ORDERING plaintiff's 19 motion for injunctive relief is DENIED; plaintiff's 21 motion to amend is DENIED; the first amended complaint filed 4/8/2016 is STRICKEN and this action shall proceed on the original complaint; and plaintiff's 26 motion for an extension of time is DENIED. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS VAUGHN JACKSON, JR., 12 Plaintiff, 13 14 15 16 17 No. 2:15-CV-1675-CMK-P vs. ORDER CARMELINO L. GALANG, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. 19 § 636(c) and no other party has been served or appeared in the action. Pending before the court 20 are: (1) plaintiff’s motion for injunctive relief (Doc. 19); (2) plaintiff’s motion for leave to amend 21 (Doc. 21); and (3) plaintiff’s motion for an extension of time (Doc. 26). 22 Turning first to plaintiff’s motion for injunctive relief, the legal principles 23 applicable to requests for injunctive relief, such as a temporary restraining order or preliminary 24 injunction, are well established. To prevail, the moving party must show that irreparable injury is 25 likely in the absence of an injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th 26 Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent 1 1 prior Ninth Circuit cases suggest a lesser standard by focusing solely on the possibility of 2 irreparable harm, such cases are “no longer controlling, or even viable.” Am. Trucking Ass’ns, 3 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Under Winter, the proper test 4 requires a party to demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer 5 irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor; 6 and (4) an injunction is in the public interest. See Stormans, 586 F.3d at 1127 (citing Winter, 7 129 S.Ct. at 374). 8 In his motion for injunctive relief, plaintiff states that defendants continue to fail 9 to provide him with what he believes is necessary to control “breakthrough pain.” Plaintiff, 10 however, admits that he is being provided with some pain medication. Specifically, plaintiff 11 states that he is currently prescribed nortriptyline. Plaintiff’s contention that this medication is 12 not “adequate” is insufficient to establish the requisite likelihood of irreparable injury absent 13 court intervention at this time. As to the other Winter factors noted above, the court finds that, 14 while plaintiff has stated a cognizable claim, it is not possible to say at this early stage of the 15 proceedings that plaintiff is likely to prevail on the merits. Given the foregoing, the court also 16 finds that the balance of hardships and the public interest do not warrant preliminary injunctive 17 relief. 18 Plaintiff also seeks leave to file a first amended complaint. Plaintiff states that the 19 amendment is required in order to include boilerplate references to this court’s subject matter 20 jurisdiction which was omitted from the original complaint. Otherwise, there appears to be no 21 substantive change in the first amended complaint. Because plaintiff adequately invoked this 22 court’s subject matter jurisdiction by alleging claims arising under 42 U.S.C. § 1983, amending 23 the complaint is unnecessary and would only cause delay. 24 /// 25 /// 26 /// 2 1 Finally, plaintiff seeks an extension of time to effect service of process on 2 defendants. By separate order issued herewith, the court will direct service by the United States 3 Marshal. Should the United States Marshal be unable to effect service of process, an extension 4 of time may be necessary. Plaintiff’s current motion for an extension of time, however, is 5 premature and unnecessary at this time. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motion for injunctive relief (Doc. 19) is denied; 8 2. Plaintiff’s motion for leave to amend (Doc. 21) is denied; 9 3. The first amended complaint filed April 8, 2016, is stricken and this action 10 11 shall proceed on the original complaint; and 4. Plaintiff’s motion for an extension of time (Doc. 26) is denied. 12 13 14 15 DATED: July 5, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 3

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