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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS VAUGHN JACKSON, JR.,

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Plaintiff,

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No. 2:15-CV-1675-CMK-P

vs.

ORDER

CARMELINO L. GALANG, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action. Pending before the court

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are: (1) plaintiff’s motion for injunctive relief (Doc. 19); (2) plaintiff’s motion for leave to amend

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(Doc. 21); and (3) plaintiff’s motion for an extension of time (Doc. 26).

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Turning first to plaintiff’s motion for injunctive relief, the legal principles

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applicable to requests for injunctive relief, such as a temporary restraining order or preliminary

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injunction, are well established. To prevail, the moving party must show that irreparable injury is

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likely in the absence of an injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th

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Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent
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prior Ninth Circuit cases suggest a lesser standard by focusing solely on the possibility of

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irreparable harm, such cases are “no longer controlling, or even viable.” Am. Trucking Ass’ns,

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Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Under Winter, the proper test

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requires a party to demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer

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irreparable harm in the absence of an injunction; (3) the balance of hardships tips in his favor;

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and (4) an injunction is in the public interest. See Stormans, 586 F.3d at 1127 (citing Winter,

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129 S.Ct. at 374).

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In his motion for injunctive relief, plaintiff states that defendants continue to fail

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to provide him with what he believes is necessary to control “breakthrough pain.” Plaintiff,

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however, admits that he is being provided with some pain medication. Specifically, plaintiff

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states that he is currently prescribed nortriptyline. Plaintiff’s contention that this medication is

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not “adequate” is insufficient to establish the requisite likelihood of irreparable injury absent

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court intervention at this time. As to the other Winter factors noted above, the court finds that,

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while plaintiff has stated a cognizable claim, it is not possible to say at this early stage of the

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proceedings that plaintiff is likely to prevail on the merits. Given the foregoing, the court also

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finds that the balance of hardships and the public interest do not warrant preliminary injunctive

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relief.

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Plaintiff also seeks leave to file a first amended complaint. Plaintiff states that the

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amendment is required in order to include boilerplate references to this court’s subject matter

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jurisdiction which was omitted from the original complaint. Otherwise, there appears to be no

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substantive change in the first amended complaint. Because plaintiff adequately invoked this

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court’s subject matter jurisdiction by alleging claims arising under 42 U.S.C. § 1983, amending

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the complaint is unnecessary and would only cause delay.

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Finally, plaintiff seeks an extension of time to effect service of process on

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defendants. By separate order issued herewith, the court will direct service by the United States

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Marshal. Should the United States Marshal be unable to effect service of process, an extension

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of time may be necessary. Plaintiff’s current motion for an extension of time, however, is

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premature and unnecessary at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for injunctive relief (Doc. 19) is denied;

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2.

Plaintiff’s motion for leave to amend (Doc. 21) is denied;

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3.

The first amended complaint filed April 8, 2016, is stricken and this action

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shall proceed on the original complaint; and
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Plaintiff’s motion for an extension of time (Doc. 26) is denied.

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DATED: July 5, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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