Ferguson v. Benov
Filing
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ORDER Denying Plaintiff's 1 Motion for Temporary Restraining Order and Directing Plaintiff to File a Complaint within Thirty Days signed by Chief Judge Anthony W. Ishii on 06/07/2011. Amended Complaint due by 7/11/2011. (Attachments: # 1 Bivens Complaint Form)(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN M. FERGUSON,
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CASE NO. 1:11-cv-00065-AWI-GBC PC
Plaintiff,
ORDER DENYING PLAINTIFF’S MOTION
FOR TEMPORARY RESTRAINING ORDER
AND DIRECTING PLAINTIFF TO FILE A
COMPLAINT WITHIN THIRTY DAYS
v.
MICHAEL L. BENOV,
(ECF No. 1)
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Defendant.
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On January 11, 2011, Plaintiff Steven M. Ferguson (“Plaintiff”), a federal prisoner
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proceeding pro se and in forma pauperis, filed a motion for a temporary restraining order. The
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Clerk’s Officer erroneously treated it as a complaint and opened the instant action. The filing is a
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motion for a temporary restraining order and preliminary injunction rather than a complaint and shall
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be treated as such. Plaintiff is requesting a court order to keep him from being transferred out of the
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Federal Prison Camp in Taft, California. On February 7, 2011, Plaintiff filed a motion to proceed
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in forma pauperis and a notice of change of address showing that he has been transferred to La Tuna
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Federal Prison Camp in Anthony, Texas.
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“A civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3.
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Additionally, a complaint must be filed in order for the court to set a hearing on a temporary
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restraining order or preliminary injunction. Local Rule 231. This action may not proceed without
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a complaint on file. By this order, Plaintiff will be provided with the opportunity to file a complaint.
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If Plaintiff does not wish to proceed with this civil action pursuant to Bivens v. Six Unknown Named
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Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), which provides a
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remedy for violation of civil rights by federal actors, Plaintiff may file a notice of voluntary
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dismissal. The Court will direct the Clerk’s Office to send Plaintiff a Bivens complaint form.
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Any award of equitable relief is governed by the Prison Litigation Reform Act, which
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provides in relevant part, “Prospective relief in any civil action with respect to prison conditions
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shall extend no further than necessary to correct the violation of the Federal right of a particular
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plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court
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finds that such relief is narrowly drawn, extends no further than necessary to correct the violation
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of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal
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right.” 18 U.S.C. § 3626(a)(1)(A).
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When an inmate seeks injunctive or declaratory relief concerning the prison where he is
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incarcerated, his claims for such relief become moot when he is no longer subjected to those
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conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368
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(9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Since Plaintiff is no longer
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incarcerated at the Federal Prison Camp, the injunctive relief he is seeking is moot.
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Accordingly, it is HEREBY ORDERED that:
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1.
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Plaintiff’s motion for a preliminary injunction, filed January 11, 2011, is DENIED,
as moot;
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2.
The Clerk’s Office shall send Plaintiff a Bivens complaint form;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall either:
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a.
File a complaint, or
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b.
File a notice of voluntary dismissal; and
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4.
The failure to comply with this order will result in the closure of this file.
IT IS SO ORDERED.
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Dated:
0m8i78
June 7, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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