Pineida v. Evans et al

Filing 31

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION; DIRECTING MARSHAL TO SERVE DEFENDANT MILLNER by Judge William Alsup granting 30 Motion Preliminary Injunction; denying 29 Motion for Preliminary Injunction (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 11/20/2012)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8
GABRIEL PINEIDA,

No. C 12-1171 WHA (PR)

9
Plaintiff,

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION;
DIRECTING MARSHAL TO SERVE
DEFENDANT MILLNER;
INSTRUCTIONS TO CLERK

10

For the Northern District of California

United States District Court

v.
11
12
13
14
15
16
17
18
19
20

E. EVANS; CHARLES D. LEE;
KATHLEEN WALL; CARL
MILLNER; R. RODRIGUES; LOY
MEDINA; M. SEPULVEDA,

(Docket Nos. 29, 30)

Defendants.
/

Plaintiff, an inmate at Salinas Valley State Prison, filed this pro se civil rights action
pursuant to 42 U.S.C. 1983. All but one defendant, Carl Millner, have been served and have
filed a motion to dismiss the complaint on administrative exhaustion grounds. Plaintiff has not
yet opposed that motion. Rather, he has filed a motion for a preliminary injunction and a
motion to have defendant Millner served at a new address.

21
Prior to granting a preliminary injunction, notice to the adverse party is required. See
22
Fed. R. Civ. P. 65(a)(1). A temporary restraining order (“TRO”) may be granted without
23
written or oral notice to the adverse party or that party's attorney only if: (1) it clearly appears
24
from specific facts shown by affidavit or by the verified complaint that immediate and
25
irreparable injury, loss or damage will result to the applicant before the adverse party or the
26
party's attorney can be heard in opposition, and (2) the applicant's attorney certifies in writing
27
the efforts, if any, which have been made to give notice and the reasons supporting the claim
28

1

that notice should not be required. See Fed. R. Civ. P. 65(b). Plaintiff has neither notified the

2

defendants of his request nor submitted the required certification of his efforts to do so and why

3

they have failed. In addition, in light of the evidence presented by defendants that plaintiff has

4

not exhausted his claims, there is no likelihood of plaintiff’s success on the merits of his claims.

5

Accordingly, the motion for a preliminary injunction (docket number 29) is DENIED.

6

Plaintiff’s motion to have defendant Millner served at a new address (dkt. 30) is

7

GRANTED. The clerk shall issue summons and the United States Marshal shall serve, without

8

prepayment of fees, a copy of the complaint in this matter with all attachments thereto, a copy

9

of the order of service and accompanying notice, and a copy of this order upon defendant Carl
Millner at La Vida Prairie Medical Group, 4455 West 117th Street, Suite #102, Hawthorne,

11
For the Northern District of California

United States District Court

10

California 90250. Defendant Carl Millner shall comply with the provisions of the Order of

12

Service; he may also opt to join in the pending motion to dismiss filed by the other defendants.

13
14
15

IT IS SO ORDERED.
Dated: November

19 , 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
G:\PRO-SE\WHA\CR.12\PINEIDA1171.TRO&2SRV.wpd

25
26
27
28

2