Burhardt v. Alvarez
- Yvonne Rogers
- 4:21-cv-01068
- U.S. District Court · Northern District of California
- 3
In Burhardt v. Alvarez, Judge Gonzalez Rogers granted amendment requests but denied the unserved plaintiff’s preliminary-injunction and temporary-restraining-order motion without prejudice.
Darryl Burhardt, who was representing himself and was in custody; the defendants, who had not yet been served.
What happened
In Burhardt v. Alvarez, Darryl Burhardt, who was representing himself and was in custody, filed a civil-rights complaint and asked to amend it. The defendants had not yet been served.
The court granted Burhardt’s requests for permission to file an amended complaint and directed him to file it on the provided form within 28 days. The court denied his request for a preliminary injunction and temporary restraining order without prejudice because the defendants had not been served and he had not met the notice requirements. The court also said it would screen the amended complaint before deciding whether the case could proceed.
Judge Yvonne Gonzalez Rogers issued the order on July 23, 2021. If Burhardt files the amended complaint, he may resubmit his request for a preliminary injunction after the defendants have been served and the case proceeds to briefing.
The detailed version
- Burhardt v. Alvarez · No. 4:21-cv-01068
- Yvonne Rogers
- July 23, 2021
Background
Darryl Burhardt filed a civil-rights complaint under 42 U.S.C. § 1983 while in custody at Salinas Valley State Prison. He was proceeding without a lawyer. He also asked to proceed without paying the filing fee; the court stated that request would be decided in a separate written order. The defendants had not been served.
Burhardt filed motions seeking permission to amend his complaint and a motion for a preliminary injunction and temporary restraining order. A preliminary injunction is a court order providing temporary relief during a case. A temporary restraining order can provide emergency relief, sometimes before the opposing party has an opportunity to respond.
Amended Complaint
The court granted Burhardt’s motions for leave to file an amended complaint. Because the defendants had not yet been served, the court determined that he could amend the complaint at that stage. Burhardt had not attached a proposed amended complaint, so the court directed him to use the attached prisoner civil-rights complaint form.
The court ordered Burhardt to file the amended complaint within 28 days. The amended complaint must include every claim he wants to pursue because it will completely replace the original complaint. He may not incorporate the original complaint by reference. If he does not file the amended complaint by the deadline, the court will review the original complaint.
Preliminary-Injunction and Temporary-Restraining-Order Motion
The court denied Burhardt’s motion for a preliminary injunction and temporary restraining order without prejudice. The court explained that a preliminary injunction generally requires notice to the opposing party, and the defendants had not been served. The court also found that Burhardt had not satisfied the requirements for emergency relief without notice, including showing through specific facts that immediate and irreparable harm would occur before the defendants could respond and certifying his efforts to provide notice or why notice should not be required.
The court further explained that it first had to screen the amended complaint under 28 U.S.C. § 1915A to determine whether it contained legally sufficient claims. The court could dismiss claims that were frivolous, malicious, failed to state a claim, or sought money from a defendant protected from such relief. Until that screening occurred, the court could not determine whether the case contained claims that could proceed.
Disposition
The court granted the motions for leave to amend and directed Burhardt to file the amended complaint within 28 days. It denied the motion for a preliminary injunction and temporary restraining order without prejudice. The court stated that Burhardt could resubmit the preliminary-injunction motion after the defendants were served if the case proceeded to briefing. The order also directed the Clerk to send Burhardt a blank civil-rights complaint form and a copy of the order, and it terminated Docket Nos. 2, 5, and 8.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.