Manning v. Schriro et al, No. 2:2007cv02553 - Document 13 (D. Ariz. 2008)
Court Description: ORDER denying 9 Plaintiff's Motion for Preliminary Injunction and granting 11 Plaintiff's Motion for Extension of Time to File an Amended Complaint. Counts I and III of the Amended Complaint 12 are dismissed without prejudice for fail ure to state a claim upon which relief may be granted. Defendants Dora Schriro, D. Edwards, Jackson, Stuart, OBrian, Carbajal, Banes, Vargas, Kuntzi, Anita Nugent, and S. Latto are dismissed from this action. Defendant P. Smith must answer Count II o f the Amended Complaint. The Clerk must send Plaintiff a service packet including the Amended Complaint 12 , this Order, and both summons and request for waiver forms for Defendant P. Smith. Plaintiff must complete and return the service packet to t he Clerk of Court within 20 days of the date of filing of this Order. This matter is referred to Magistrate Judge Lawrence A. Anderson pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings. Signed by Judge Stephen M McNamee on 9/9/08.(LSP)
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Manning v. Schriro et al 1 Doc. 13 WO RP 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Leonard L. Manning, Plaintiff, 10 11 vs. 12 Dora Schriro, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 07-2553-PHX-SMM (LOA) ORDER 14 15 Pending before the Court are Plaintiff’s “Motion For A Preliminary Injunction” 16 (Doc. #9), “Declaration Supporting Plaintiff’s Request For A Preliminary Injunction” 17 (Doc. #10), “Motion For An Extension of Time To File An Amended Complaint” (Doc. 18 #11), and “First Amended Complaint” (Doc. #12) (Amended Complaint). 19 The Court will deny the “Motion For A Preliminary Injunction” (Doc. #9), grant the 20 “Motion For An Extension of Time To File An Amended Complaint” (Doc. #11), require 21 Defendant P. Smith to answer Count II of the Amended Complaint, and dismiss the 22 remaining counts and Defendants for failure to state a claim upon which relief may be 23 granted. 24 I. Procedural Background 25 On December 17, 2007, Plaintiff Leonard L. Manning, who is confined in the Arizona 26 State Prison Complex-Eyman (ASPC-Eyman), filed a pro se civil rights Complaint pursuant 27 to 42 U.S.C. § 1983 (Doc. #1) and an Application to Proceed In Forma Pauperis (Doc. #3). 28 By Order filed April 28, 2008 (Doc. #4), the Court granted the Application to Proceed In TERMPSREF Dockets.Justia.com TERMPSREF 1 Forma Pauperis, assessed an initial partial filing fee, and dismissed the Complaint for failure 2 to state a claim. Plaintiff was given 30 days from the filing date of the Order to file a first 3 amended complaint in compliance with the Order. 4 On May 28, 2008, Plaintiff filed a “Motion For Extension of Time to File Amended 5 Complaint” (Doc. #7), which the Court granted by Order filed June 3, 2008 (Doc. #8). 6 Plaintiff was given 20 days from the filing date of the Order to file a first amended 7 complaint. 8 II. Motion for Extension of Time to File Amended Complaint 9 On July 1, 2008, Plaintiff filed a “Motion For An Extension of Time To File An 10 Amended Complaint” (Doc. #11), in which he requests a 20-day extension of time to file his 11 Amended Complaint. Plaintiff’s Motion will be granted. 12 III. Statutory Screening of Prisoner Complaints 13 The Court is required to screen complaints and amended complaints brought by 14 prisoners seeking relief against a governmental entity or an officer or an employee of a 15 governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion 16 thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state 17 a claim upon which relief may be granted, or that seek monetary relief from a defendant who 18 is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 19 IV. Amended Complaint 20 On July 1, 2008, Plaintiff filed his Amended Complaint (Doc. #12). With regard to 21 his Amended Complaint, Plaintiff should take notice that all causes of action alleged in an 22 original complaint which are not alleged in an amended complaint are waived. Hal Roach 23 Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“an amended pleading 24 supersedes the original”); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the 25 Court will consider only those claims specifically asserted in Plaintiff’s Amended Complaint 26 with respect to only those Defendants specifically named in the Amended Complaint. 27 Named as Defendants in the Amended Complaint are: (1) Dora Schriro, Director of 28 the Arizona Department of Corrections (ADOC); (2) D. Edwards, Deputy Warden, -2- 1 Disciplinary Appeals Officer, Morey Unit, Arizona State Prison Complex-Lewis (ASPC- 2 Lewis); (3) Jackson, Corrections Officer (CO) IV, Morey Unit, ASPC-Lewis; (4) Stuart, 3 Captain, Disciplinary Hearing Officer, Morey Unit, ASPC-Lewis; (5) O’Brian, CO III; 4 (6) Carbajal, CO II; (7) Banes, CO II, Security Officer; (8) Vargas, Sergeant (Sgt.), Security 5 Officer; (9) Kuntzi, Correctional Medical Worker; (10) Anita Nugent, Educational 6 Administrator; (11) P. Smith, Institutional Chaplain; and (12) S. Latto, Librarian II. 7 Plaintiff alleges three counts in the Amended Complaint. In Count I, Plaintiff claims 8 that his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United 9 States Constitution have been violated with regard to a threat of retaliation and disciplinary 10 proceedings. In Count II, Plaintiff claims that his rights under the Religious Freedom 11 Restoration Act and the First Amendment of the United States Constitution have been 12 violated with regard to exercise of his religion. In Count III, Plaintiff claims that his rights 13 under Bounds v. Smith, 430 U.S. 817, 821 (1977), and the First and Fourteenth Amendments 14 of the United States Constitution have bee violated with regard to access to the court. Plaintiff seeks a jury trial, injunctive relief, and compensatory and punitive monetary 15 TERMPSREF 16 damages. 17 V. Discussion 18 A. Count I 19 In Count I, Plaintiff claims that his rights under the First, Fifth, Sixth, Eighth, and 20 Fourteenth Amendments to the United States Constitution have been violated with regard to 21 a threat of retaliation and disciplinary proceedings. Plaintiff complains about two separate 22 disciplinary proceedings in Count I. The first disciplinary proceeding was for using abusive 23 language towards Defendant Banes and the second disciplinary proceeding was for refusing 24 Defendant Vargas’ direct order to shave. 25 1. Due Process and Equal Protection Claims 26 In the first disciplinary proceeding, Plaintiff alleges that his due process and equal 27 protection rights were violated when Defendant Banes issued him a disciplinary citation on 28 September 18, 2005, for using abusive language. Plaintiff claims that Defendant Banes did -3- TERMPSREF 1 not “see” Plaintiff using any abusive language “toward” him and “singled” him out from 2 several other inmates for punishment. Plaintiff further claims that the Disciplinary Hearing 3 Officer, Defendant Stuart, abusively failed to dismiss the disciplinary citation for lack of 4 evidence at the disciplinary hearing and that the Disciplinary Hearing Officer, Defendant 5 Edwards, upheld the disciplinary finding with the reasoning: “My CO’s are not racist. I 6 advise you to not pursue this matter.” 7 In analyzing a due process claim, the Court must first decide whether Plaintiff was 8 entitled to any process, and if so, whether he was denied any constitutionally required 9 procedural safeguard. 10 Liberty interests which entitle an inmate to due process are “generally limited to 11 freedom from restraint which, while not exceeding the sentence in such an unexpected 12 manner as to give rise to protection by the Due Process Clause of its own force, nonetheless 13 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents 14 of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). 15 Therefore, to determine whether an inmate is entitled to the procedural protections 16 afforded by the Due Process Clause, the Court must look to the particular restrictions 17 imposed and ask whether they “‘present the type of atypical, significant deprivation in which 18 a state might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 931, 932 (9th 19 Cir. 1995) (quoting Sandin, 515 U.S. at 486). 20 To determine whether the sanctions are atypical and a significant hardship, courts look 21 to prisoner’s conditions of confinement, the duration of the sanction, and whether the 22 sanction will affect the duration of the prisoner’s sentence. See Keenan v. Hall, 83 F.3d 23 1083, 1088-89 (9th Cir. 1996). “Atypicality” requires not merely an empirical comparison, 24 but turns on the importance of the right taken away from the prisoner. See Carlo v. City of 25 Chino, 105 F.3d 493, 499 (9th Cir. 1997). See, e.g., Sandin, 515 U.S. at 472 (30 days’ 26 disciplinary segregation is not atypical and significant); Torres v. Fauver, 292 F.3d 141, 151 27 (3rd Cir. 2002) (four months in administrative segregation is not atypical and significant); 28 Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997) (denial of year sentence reduction is not an -4- TERMPSREF 1 atypical and significant hardship); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two and 2 one-half years of administrative segregation is not atypical and significant); Griffin v. 3 Vaughn, 112 F.3d 703, 706-708 (3rd Cir. 1997) (fifteen months’ administrative segregation 4 is not atypical and significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (six 5 months of confinement in especially disgusting conditions that were “more burdensome than 6 those imposed on the general prison population were not “atypical . . . in relation to the 7 ordinary incidents of prison life.”). 8 Plaintiff has not alleged or shown that sanctions imposed as a result of his first 9 disciplinary conviction violated a liberty interest he had under the Due Process Clause itself, 10 or imposed an “atypical and significant hardship” on him. Sandin, 515 U.S. at 484. 11 Although Plaintiff has not specifically alleged what sanctions were imposed on him, he does 12 allege that “as a result” of this “Disciplinary Citation,” he was “dis[]allowed a work 13 assignment, for a period of 6 months,” and it “contributed to him being reclassified to a more 14 restrictive custody.” Neither of these “results” rise to the level of an atypical and significant 15 hardship. Thus, Plaintiff has failed to identify a liberty interest that would require due 16 process protections. 17 For purposes of equal protection, prisoners are not a suspect class. See Webber v. 18 Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); McQueary v. Blodgett, 924 F.2d 829, 834 (9th 19 Cir. 1991). Inmates are not entitled to identical treatment as other inmates merely because 20 they are all inmates. See Norvell v. Illinois, 373 U.S. 420 (1963). A mere demonstration of 21 inequality is not enough to establish a violation of the Equal Protection Clause. When a 22 suspect class is not implicated, the complainant must allege invidious discriminatory intent. 23 McQueary, 924 F.2d at 834-35. However, conclusory allegations alone do not establish an 24 equal protection violation without proof of invidious discriminatory intent. See Village of 25 Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977). In addition, 26 when a suspect class is not implicated, the court must determine whether the alleged 27 discrimination is “patently arbitrary and bears no rational relationship to a legitimate 28 governmental interest.” Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987) (internal -5- 1 TERMPSREF quotations omitted). 2 Here, Plaintiff has failed to allege that he is a member of a suspect class, or that 3 Defendants’ conduct was the result of purposeful or invidious discrimination, or that the 4 conduct bore no rational relationship to a legitimate governmental interest. Plaintiff’s 5 conclusory allegation that the Disciplinary Report “was arbitrary, and/or racist, because it 6 singled []out the Plaintiff, from amongst several other inmates, for punishment,” is not 7 sufficient to state a claim under the Equal Protection Clause of the Fourteenth Amendment. 8 2. Deliberate Indifference Claim 9 In the second disciplinary proceeding, Plaintiff alleges that after Defendant Vargas 10 seized a copy of Plaintiff’s “Grooming (Shaving) Waiver” and told Plaintiff to shave, 11 Defendant Vargas issued Plaintiff a disciplinary citation on September 17, 2006, for 12 disobeying his direct order to shave. Plaintiff also alleges that Defendant Kuntzi “‘falsely’ 13 indicated” to Defendant Vargas that Plaintiff’s “Grooming (Shaver) Waiver” had “expired” 14 and that this was included in Defendant Vargas’ Disciplinary Report. Plaintiff further alleges 15 that Defendant Carbajal, Coordinator of Discipline, and Defendant Stuart, Disciplinary 16 Hearing Officer, had a “duty to dispose” of Defendant Vargas’ disciplinary citation when 17 Plaintiff presented both of them with a copy of his “permanent Medical Shaving 18 Prescription.” Presumably, they both failed to “dispose” of the disciplinary citation. Plaintiff 19 claims that the actions of Defendants Vargas, Kuntzi, Carbajal, and Stuart were “consistent 20 to deliberate indifference to [P]laintiff’s medical prescription.” 21 To state a claim under the Eighth Amendment for prison medical care, a prisoner must 22 allege “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091 (9th 23 Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a 24 “serious medical need” by demonstrating that failure to treat the condition could result in 25 further significant injury or the unnecessary and wanton infliction of pain and (2) the 26 defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations 27 omitted). To act with deliberate indifference, a prison official must both know of and 28 disregard an excessive risk to inmate health; the official must both be aware of facts from -6- TERMPSREF 1 which the inference could be drawn that a substantial risk of serious harm exists and he must 2 also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 3 The indifference must be substantial. Estelle, 429 U.S. at 105-06. The action must 4 rise to a level of “unnecessary and wanton infliction of pain.” Id. at 106. Claims of 5 “indifference,” “negligence,” or “medical malpractice” do not support a claim under 42 6 U.S.C. § 1983. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). “A 7 difference of opinion does not amount to deliberate indifference to [a plaintiff’s] serious 8 medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in 9 medical care, without more, is insufficient to state a claim against prison officials for 10 deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 11 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 12 “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105-06. Not every claim 13 by a prisoner that he or she has received inadequate medical treatment states a violation of 14 the Eighth Amendment. 15 In the instant case, Plaintiff has failed to allege facts that show that Defendant Vargas, 16 Kuntzi, Carbajal, or Stuart was deliberately indifferent to a serious medical need of Plaintiff. 17 Simply having a medical waiver from shaving does not show that Plaintiff had a serious 18 medical need and Plaintiff does not allege that he had a serious medical condition that 19 prevented him from shaving. Generally, the discomfort that a prisoner might experience 20 while shaving does not rise to the level of a serious medical need protected by the Eighth 21 Amendment. See Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986) (injuries 22 associated with shaving, including “bleeding, inflamation, irritation, ingrowing of hairs, 23 infection, purulence and pain” did not constitute a sufficiently serious medical problem to 24 warrant Eighth Amendment protection). Moreover, Plaintiff does not allege that he was 25 actually forced to shave. 26 3. Threat of Retaliation Claim 27 In Count I, Plaintiff also makes a threat of retaliation claim against Defendants 28 Edwards, Jackson, O’Brian, Nugent, Vargas, Kuntzi, Carbajal, and Stuart. Although -7- TERMPSREF 1 Plaintiff’s threat of retaliation claim is both conclusory and vague, it appears that it is based 2 on Defendant Edwards’ “reasoning” in denying Defendant Stuart’s disciplinary finding that 3 “[m]y CO’s are not racist. I advise you to not pursue this matter.” Plaintiff states that he 4 “perceived Mr. Edward’s admonitory ‘advisement[,’] to not pursue an appeal, of his decision, 5 as a very serious threat to himself.” 6 Plaintiff claims that actions of Defendant Jackson, in keeping him locked in an 7 isolation holding cage outside of Defendant Jackson’s office for hours, was “consistent to 8 Mr. Edwards threat of retaliation and a pattern of harassment.” Plaintiff further claims that 9 Defendant O’Brian’s actions in failing to respond to an April 9, 2007 Informal Grievance 10 regarding his “GED” test scores “was consistent to the Deputy Warden’s threat and policy 11 of harassment.” Similarly, Plaintiff claims that the actions of Defendant Anita Nugent in not 12 correcting incorrect “GED” test scores and not finding out what happened to Plaintiff’s test 13 results was “consistent to Deputy Warden Edward’s threat, of retaliation and harassment.” 14 Lastly, Plaintiff claims that the actions of Defendants Vargas, Kunzi, Carbajal, and Stuart 15 with regard to his disciplinary proceedings concerning his refusal to shave were “consistent 16 to . . . Deputy Edward[s’] policy of threats, intimidation and harassment.” 17 “A prisoner suing prison officials under section 1983 for retaliation must allege that 18 he was retaliated against for exercising his constitutional rights and that the retaliatory action 19 does not advance legitimate penological goals, such as preserving institutional order and 20 discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Thus, to succeed on 21 the merits of a retaliation claim, a prisoner must demonstrate that he was retaliated against 22 for exercising his constitutional rights, and he must also demonstrate that the retaliatory 23 action does not advance a legitimate penological goal, or is not narrowly tailored to achieve 24 that goal. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 25 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 26 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board 27 of Regents of the University of Alaska, 673 F.2d 266 (9th Cir. 1982). Further, a liberal 28 interpretation of a civil rights complaint may not supply essential elements of the claim that -8- 1 2 Plaintiff has not alleged in Count I that any of the Defendants retaliated against him 3 for exercising a particular constitutional right. Moreover, even if the Court were to infer 4 such an allegation from some of the reasons Plaintiff gives for the retaliation, Plaintiff has 5 clearly failed to allege that the retaliatory action did not advance a legitimate penological 6 goal, or was not narrowly tailored to achieve that goal. 7 Also, all of Plaintiff’s retaliation claims are extremely conclusory and vague. Mere 8 allegations that a Defendant’s actions were “consistent” with a vague threat that Defendant 9 Edwards made one to two years prior to the actions in question are not sufficient to state a 10 11 12 TERMPSREF were not initially pled. Id. at 268. constitutional retaliation claim. Accordingly, for the above reasons, Count I will be dismissed for failure to state a claim for relief upon which relief may be granted. 13 B. Count II 14 In Count II, Plaintiff claims that his rights under the Religious Freedom Restoration 15 Act and the First Amendment of the United States Constitution have been violated with 16 regard to exercise of his religion. Plaintiff alleges that his religious belief is “the Religion 17 of Shabazz,” which is based on the tenets of “the Honorable Elijah Muhammad,” and that 18 on August 4, 2005, he “forwarded” an Inmate Letter to Defendant P. Smith, in which he 19 requested to be placed on a “Kosher Religious Diet,” to have his “Religious Preference” 20 indicate “Coptic Monophysitic Christianity,” and to be authorized to attend “Catholic 21 Services” because they were somewhat similar to his own faith. Plaintiff further alleges that 22 Defendant Smith refused to authorize a “Kosher diet” per his religious tenets and told 23 Plaintiff he would have to submit a “change of Religious Preference Form” along with a 24 “letter of membership[] from a Catholic Organization” if he wanted “authorization to attend 25 ‘a’ prison religious service.” 26 Liberally construed, Plaintiff has stated a claim against Defendant Smith in Count II. 27 Accordingly, the Court will require Defendant Smith to answer Count II of the Amended 28 Complaint. -9- 1 C. 2 In Count III, Plaintiff claims that his rights under Bounds v. Smith, 430 U.S. 817, 821 3 (1977) and First and Fourteenth Amendments of the United States Constitution have been 4 violated with regard to access to the court. In order to state a viable constitutional claim 5 under 42 U.S.C. § 1983, Plaintiff must show an affirmative link between the alleged injury 6 and the conduct of an individual Defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 7 (1976). However, as he did with his access to the court claim in the original Complaint, 8 Plaintiff has not referred to any named Defendant in Count III. 9 In the Court’s April 28, 2008 Order (Doc. #4) dismissing the original Complaint with 10 leave to amend, Plaintiff was specifically admonished that in any amended complaint, he 11 must write out short, plain statements telling the Court (1) the constitutional right Plaintiff 12 believes was violated; (2) the name of the person who violated the right; (3) exactly what that 13 individual did or failed to do; (4) how the action or inaction of that person is connected to the 14 violation of Plaintiff’s constitutional rights; and (5) what specific injury Plaintiff suffered 15 because of that person’s conduct. See Rizzo, 423 U.S. at 371-72, 377. Plaintiff has failed 16 to comply with the Court’s admonition in Count III. Accordingly, Count III will be dismissed for failure to state a claim upon which relief 17 TERMPSREF Count III 18 may be granted. 19 VI. Dismissal of Defendants 20 Because no claims now remain against them, Defendants Dora Schriro, D. Edwards, 21 Jackson, Stuart, O’Brian, Carbajal, Banes, Vargas, Kuntzi, Anita Nugent, and S. Latto, will 22 be dismissed from this action for failure to state a claim upon which relief may be granted. 23 VII. Motion for A Preliminary Injunction 24 On June 24, 2008, Plaintiff filed a “Motion For A Preliminary Injunction” (Doc. #9) 25 (Motion), which includes a “Memorandum of Points and Authorities” (Memorandum), and 26 a “Declaration Supporting Plaintiff’s Request For A Preliminary Injunction” (Doc. #10) 27 (Declaration). It is unclear precisely what injunctive relief Plaintiff is seeking. In his 28 Motion, Plaintiff merely states that he “hereby request[s] a Preliminary Injunction, - 10 - TERMPSREF 1 Fed.R.Civ.P., Rule 65(a).” The closest Plaintiff comes to clarifying his request comes in his 2 Memorandum where he states that he “hereby moves for a Preliminary Injunction to ensure 3 that he is not further deprived of legal services, and adequate court access.” 4 The purpose of preliminary injunctive relief is to preserve the status quo or to prevent 5 irreparable injury pending the resolution of the underlying claim. Sierra On-Line, Inc. v. 6 Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). The Ninth Circuit recognizes 7 two tests for determining whether a district court should grant a preliminary injunction. 8 Under the traditional standard, a plaintiff must show: (1) a strong likelihood of success on 9 the merits; (2) a possibility of irreparable injury should the injunction not be granted; (3) that 10 the balance of hardships tips in his favor; and in some cases (4) that an injunction advances 11 the public interest. Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 12 1995). Alternatively, the plaintiff may show “either a combination of probable success on 13 the merits and the possibility of irreparable injury or that serious questions are raised and 14 balance of hardships tips sharply in his favor.” Id. Under either test, the movant bears the 15 burden of persuasion, Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 869 (9th Cir. 16 2003), and must demonstrate a significant threat of irreparable injury. AGCC v. Coalition 17 for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991). 18 Plaintiff’s Motion appears to be based primarily on problems and delays that he has 19 experienced in getting access to legal research materials in the library and in getting copies 20 of his Amended Complaint. Apparently, Plaintiff was refused copies of the Amended 21 Complaint because his prison account balance had insufficient funds, and, therefore, he was 22 required to submit the Amended Complaint to the prison paralegal for approval to obtain 23 copies. Plaintiff complains that if he were to have submitted his Amended Complaint to the 24 paralegal for approval, he would not have made the Court’s deadline. 25 Aside from the fact that Plaintiff has not clearly explained who and what he wishes 26 to enjoin with a preliminary injunction, the Court finds that Plaintiff has not demonstrated 27 a significant threat of irreparable injury. As he has done in filing the Amended Complaint, 28 Plaintiff is free to file a motion with this Court asking for extensions of time to file required - 11 - 1 pleadings when, and if, he is hindered in making copies for filing purposes. 2 3 VIII. Warnings 4 A. 5 Plaintiff must file and serve a notice of a change of address in accordance with Rule 6 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 7 relief with a notice of change of address. Failure to comply may result in dismissal of this 8 action. 9 B. Address Changes Copies 10 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 11 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 12 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 13 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 14 may result in the filing being stricken without further notice to Plaintiff. 15 C. 16 If Plaintiff fails to timely comply with every provision of this Order, including these 17 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 18 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 19 comply with any order of the Court). 20 IT IS ORDERED: Possible Dismissal 21 (1) Plaintiff’s “Motion For A Preliminary Injunction” (Doc. #9) is denied. 22 (2) Plaintiff’s “Motion For An Extension of Time To File An Amended 23 24 25 26 TERMPSREF Accordingly, Plaintiff’s Motion will be denied. Complaint” (Doc. #11) is granted. (3) Counts I and III of the Amended Complaint (Doc. #12) are dismissed without prejudice for failure to state a claim upon which relief may be granted. (4) Defendants Dora Schriro, D. Edwards, Jackson, Stuart, O’Brian, Carbajal, 27 Banes, Vargas, Kuntzi, Anita Nugent, and S. Latto are dismissed from this action for failure 28 to state a claim upon which relief may be granted. - 12 - 1 (5) Defendant P. Smith must answer Count II of the Amended Complaint. 2 (6) The Clerk of Court must send Plaintiff a service packet including the 3 Amended Complaint (Doc. #12), this Order, and both summons and request for waiver forms 4 for Defendant P. Smith. 5 Plaintiff must complete and return the service packet to the Clerk of Court 6 within 20 days of the date of filing of this Order. The United States Marshal will not provide 7 service of process if Plaintiff fails to comply with this Order. 8 (8) If Plaintiff does not either obtain a waiver of service of the summons or 9 complete service of the Summons and Amended Complaint on Defendant Smith within 120 10 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 11 is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(I). 12 13 14 TERMPSREF (7) (9) The United States Marshal must retain the Summons, a copy of the Amended Complaint (Doc. #12), and a copy of this Order for future use. (10) The United States Marshal must notify Defendant P. Smith of the 15 commencement of this action and request waiver of service of the summons pursuant to Rule 16 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant must include a copy 17 of this Order. The Marshal must immediately file requests for waivers that were returned as 18 undeliverable and waivers of service of the summons. If a waiver of service of summons is 19 not returned by Defendant within 30 days from the date the request for waiver was sent by 20 the Marshal, the Marshal must: 21 (a) personally serve copies of the Summons, Amended Complaint, and this 22 Order upon Defendant Smith pursuant to Rule 4(e)(2) of the Federal Rules of Civil 23 Procedure; and 24 (b) within 10 days after personal service is effected, file the return of service 25 for Defendant, along with evidence of the attempt to secure a waiver of service of the 26 summons and of the costs subsequently incurred in effecting service upon Defendant. 27 The costs of service must be enumerated on the return of service form (USM-285) and 28 must include the costs incurred by the Marshal for photocopying additional copies of - 13 - 1 the Summons, Amended Complaint, or this Order and for preparing new process 2 receipt and return forms (USM-285), if required. Costs of service will be taxed against 3 the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 4 Procedure, unless otherwise ordered by the Court. 5 (11) If Defendant agrees to waive service of the Summons and Amended 6 Complaint, he must return the signed waiver forms to the United States Marshal, not 7 the Plaintiff. 8 9 10 11 12 13 (12) Defendant P. Smith must answer Count II of the Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (13) This matter is referred to Magistrate Judge Lawrence A. Anderson pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings. DATED this 9th day of September, 2008. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 14 -
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