Opinion
James Lee Williams, II, Petitioner, Pro se, Adelanto, CA.
For Richard B. Ives, Warden, Respondent: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, LEAD ATTORNEY, Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA.
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER
(filed Jan. 26, 2015)
BEVERLY REID O'CONNELL, UNITED STATES DISTRICT JUDGE.
The Court DENIES Plaintiff's motion for a preliminary injunction and/or a temporary restraining order (TRO) for the following reasons.
Plaintiff is a federal inmate housed in a high-security section of USP Victorville. He states that his prison refuses to supply him with pens or pencils for writing legal documents. He requests a preliminary injunction and/or TRO to lift this restriction. He explains that he faces filing deadlines in two other districts. The first is a February 6, 2015 deadline for filing a 28 U.S.C. § 2255 motion. The second is, or was, a repeatedly extended deadline of January 5, 2015 -- not November 30, 2014 as he states -- for filing Objections to a Magistrate Judge's Report. Compare Mem. at 3 (asserting Nov. 30 deadline) with docket in Williams v. Fox, W.D. Okla. case no. 5:13-cv-1280-C, ECF 57 (order extending already-extended deadline to Jan. 5). He had to buy a pencil from another inmate in order to able to present the current materials, 29 of which are his own handwritten pages. The Court will not grant relief for several independent reasons.
First, no complaint or other pleading is on file. Thus, no " case" or " controversy" exists to supply jurisdiction for granting relief. Moreover, even if the Court construed the current submission so liberally as to see a complaint therein, Plaintiff has not paid the fee for filing it and has not presented an application to proceed in forma pauperis (IFP). Nor is Plaintiff in imminent danger of serious physical injury or otherwise in circumstances that warrant forgoing a filing fee and IFP status. Cf . 28 U.S.C. § 1915(g).
The motion also is unpersuasive on the merits. Plaintiff's case is particularly weak as to the second element of the familiar four-part test in Winter v. Natural Resources Defense Council, Inc ., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see generally Fed.R.Civ.P. 65. He must show that he will suffer irreparable harm absent the requested relief. For two reasons, Plaintiff cannot do so. First, Plaintiff can avoid one of the two kinds of harm he fears by simply preparing his § 2255 motion in pencil -- and he presumably could have prepared his Objections in pencil. (Also, to the extent that Plaintiff bases his motion on harm arising from missing the already-passed Objections deadline of January 5, the motion is moot. Any harm for missing that deadline cannot be prevented now.) Second, any possible harm will not be irreparable. Even if Plaintiff suffers " actual injury" due to the prison's restrictions on supplies, see Dilley v. Gunn, 64 F.3d 1365, 1368 n.2 (9th Cir. 1995), he may obtain relief in an appropriate separate action proving the injury.
The case is referred to the assigned Magistrate Judge for further proceedings.
IT IS SO ORDERED.