Atwood II v. United States of America et al

Filing 22

ORDER Denying Without Prejudice 21 Motion for Preliminary Injunction. Atwood has not yet properly served the Defendant, and has not shown why it would be appropriate to grant relief without giving the Defendant a chance to oppose his request. He has also not shown why either of the two standardsfor issuance of a preliminary injunction is satisfied. For these reasons, his motion is denied without prejudice. Signed by Judge Larry Alan Burns on 9/11/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID GARLAND ATWOOD II, 12 CASE NO. 17cv1320-LAB (WVG) Plaintiff, vs. 13 14 UNITED STATES PROBATION OFFICE, SAN DIEGO, 15 ORDER DENYING WITHOUT PREJUDICE MOTION FOR PRELIMINARY INJUNCTION Defendants. 16 17 Plaintiff David Atwood, proceeding pro se and in forma pauperis, filed a petition asking 18 this Court to order the local federal probation office to accept supervision of him so that he 19 can seek medical care in this District. 20 After conducting the screening required by 28 U.S.C. § 1915(e)(2)(B), the Court noted 21 that, if the complaint is construed liberally, it could state a claim. (See Docket no. 11.) But 22 the United States was dismissed as a Defendant, leaving only the U.S. Probation Office in 23 San Diego as the sole Defendant. The Court then ordered the U.S. Marshals Service to 24 serve the Defendant as directed by Atwood on U.S. Marshal Form 285. (Id. at 3:1–4.) The 25 Court’s order cautioned Atwood that he was responsible for properly completing the form so 26 that it would comply with Fed. R. Civ. P. 4(i)’s requirements. (Id. at 3:4–6.) 27 Proofs of service were filed, showing that the U.S. Probation office and Officer Paula 28 Burke were served (Docket nos. 17 and 18), and that Assistant U.S. Attorney Paula Dixon -1- 17cv1320 1 was also served. (Docket no. 19.) No proof of service on this District’s U.S. Attorney,1 or on 2 the U.S. Attorney General2 has been filed, as required by Fed. R. Civ. P. 4(i), and Defendant 3 has not appeared or waived service. 4 Atwood has now filed a motion for a preliminary injunction, asking the Court to order 5 the local probation office to accept supervision of him — in essence, giving him the all the 6 relief he is asking for. 7 The Ninth Circuit has explained the standard for issuance of a preliminary injunction. 8 A party seeking a preliminary injunction must meet one of two variants of the same standard. Under the original Winter standard, a party must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”• Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Under the “sliding scale” variant of the Winter standard, “if a plaintiff can only show that there are ‘serious questions going to the merits' — a lesser showing than likelihood of success on the merits — then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 9 10 11 12 13 14 15 16 All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). Atwood has not 17 mentioned or addressed either standard in his motion. 18 Atwood has not yet properly served the Defendant, and has not shown why it would 19 be appropriate to grant relief without giving the Defendant a chance to oppose his request. 20 See Fed. R. Civ. P. 65(a) and (b)(1). He has also not shown why either of the two standards 21 for issuance of a preliminary injunction is satisfied. For these reasons, his motion is DENIED 22 WITHOUT PREJUDICE. 23 24 IT IS SO ORDERED. DATED: September 11, 2017 25 HONORABLE LARRY ALAN BURNS United States District Judge 26 27 1 Currently, this is Acting U.S. Attorney Alana Robinson. 2 This is U.S. Attorney General Jeff Sessions. 28 -2- 17cv1320

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