“The grant of a 8 preliminary injunction is the exercise of a very far reaching power never to be indulged in 9 except in a case clearly warranting it.”
How later courts described this case
- “The grant of a 8 preliminary injunction is the exercise of a very far reaching power never to be indulged in 9 except in a case clearly warranting it.”
- discussing similar screening required by 28 U.S.C. § 1915A of all 20 complaints filed by prisoners “seek[ing] redress from a governmental entity or officer or 21 employee of a governmental entity.”
- “[I]njunctive relief is ‘to be used sparingly, and only in a clear and plain case,’” 21 especially when the court is asked to enjoin the conduct of a state agency
- noting that federal courts should not read futility or other exceptions into the PLRA’s exhaustion requirement
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MICHAEL D. PERVOE, Case No.: 25-cv-02271-CAB-MMP
CDCR #C-59138,
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ORDER DENYING MOTION FOR
Plaintiff,
13 PRELIMINARY INJUNCTION AND
vs. DISMISSING CIVIL ACTION
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WITHOUT PREJUDICE
JEFF MACOMBER, Secretary of CDCR;
15 FOR FAILING TO PAY FILING
PEREZ, Correctional Sergeant;
FEES REQUIRED BY
16 CLAYTON, RJD Physician;
28 U.S.C. § 1914(a)
ESGUERRA, CCI Counselor,
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Defendants. [Doc. No. 2]
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21 Plaintiff Michael D. Pervoe, currently incarcerated at Richard J. Donovan
22 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a
23 civil rights complaint pursuant to 42 U.S.C. § 1983, together with a motion seeking
24 preliminary injunctive relief. [See Doc. Nos. 1, 2.] Plaintiff claims the Secretary of the
25 California Department of Corrections and Rehabilitation (“CDCR”), and several
26 correctional and medical officials at RJD violated his constitutional rights as well as the
27 Americans with Disabilities Act by refusing to grant him single cell accommodations due
28 to a medical disability upon his transfer to RJD and by charging him with a disciplinary
1 violation when he refused to accept a cellmate. [See Doc. No. 1 at 3‒6.] Plaintiff seeks
2 $125,000 in general and punitive damages, the dismissal of all disciplinary action, and an
3 injunction requiring reinstatement of his prior single cell status. [Id. at 8; Doc. No. 2 at 5.]
4 Because Plaintiff has failed to pay the $405 filing fee required to commence this
5 civil action, to move to proceed in forma pauperis (“IFP”), or to show he is entitled to
6 immediate injunctive relief, the Court DENIES his motion and DISMISSES the case
7 without prejudice.
8 I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS
9 All parties instituting any civil action, suit or proceeding in a district court of the
10 United States, except an application for writ of habeas corpus, must pay a filing fee of
11 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
12 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
13 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
14 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
15 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
16 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
17 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. §
18 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
19 Section 1915(a)(2), as amended by the Prison Litigation Reform Act (“PLRA”),
20 requires all persons seeking to proceed without full prepayment of fees to submit an
21 affidavit that includes a statement of all assets possessed and which demonstrates an
22 inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)
23 (emphasis added). In support of this affidavit, prisoners like Plaintiff must also submit a
24 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
25 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
26 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified
27 trust account statement that the Court assesses an initial payment of 20% of (a) the average
28 monthly deposits in the account for the past six months, or (b) the average monthly balance
1 in the account for the past six months, whichever is greater, unless he has no assets. See
2 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the
3 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s
4 income, in any month in which his account exceeds $10, and forwards those payments to
5 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at
6 85‒86.
7 Plaintiff did not pay the filing fee required to commence a civil action when he filed
8 his complaint, nor has he filed a motion to proceed IFP, which includes both the affidavit
9 required by 28 U.S.C. § 1915(a)(1) and the certified copies of his trust funds account
10 statements required by 28 U.S.C. § 1915(a)(2). While RJD has submitted a prison
11 certificate and copies of Plaintiff’s CDCR Inmate Statement Report on his behalf, [see Doc.
12 No. 3], this accounting, unless accompanied by a motion and affidavit submitted by
13 Plaintiff himself, is insufficient. “The in forma pauperis statute authorizes courts to allow
14 ‘[1] the commencement, prosecution or defense of any suit, action or proceeding, civil or
15 criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a
16 person who [2] makes affidavit that he is [3] unable to pay such costs or give security
17 therefor.’” Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
18 194, 214 (1993) (quoting 28 U.S.C. § 1915(a)). “Section 1915(a) thus contemplates that
19 the [person] who is entitled to the benefits of the provision will have three characteristics:
20 He will have the capacity to sue or be sued, to make an affidavit, and to be unable to pay
21 court costs.” Id. “Such affidavit shall [also] state the nature of the action, . . . and affiant’s
22 belief that [he] is entitled to redress.” 28 U.S.C. § 1915(a)(1). “When a claim of poverty
23 is made under section 1915 ‘it is proper and indeed essential for the supporting affidavits
24 to state the facts as to affiant’s poverty with some particularity, definiteness and certainty.’”
25 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United
26 States, 277 F.2d 723, 725 (9th Cir. 1960)).
27 Therefore, unless Plaintiff either pays the filing fee “upfront,” Bruce, 577 U.S. at 86,
28 or files a properly supported motion to proceed IFP that includes the affidavit required by
1 28 U.S.C. § 1915(a)(1), his case cannot proceed. See 28 U.S.C. § 1914(a); Cervantes, 493
2 F.3d at 1051.
3 II. MOTION FOR PRELIMINARY INJUNCTION
4 Plaintiff also seeks to enjoin Defendants from assigning him to a double cell and to
5 expunge any disciplinary sanctions imposed upon him for refusing a cellmate. [See Doc.
6 No. 2 at 5.]
7 Procedurally, a federal district court may issue emergency injunctive relief only if it
8 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit.
9 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting
10 that one “becomes a party officially, and is required to take action in that capacity, only
11 upon service of a summons or other authority-asserting measure stating the time within
12 which the party served must appear and defend.”). A court may not attempt to determine
13 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245
14 U.S. 229, 234—35 (1916); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727‒28 (9th Cir. 1983).
15 Pursuant to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties
16 to the action,” their “officers, agents, servants, employees, and attorneys,” and “other
17 persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).
18 Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he
19 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
20 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is
21 in the public interest.’” Glossip v. Gross, 576 U.S. 863, 876 (2015) (quoting Winter v. Nat.
22 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish
23 that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”
24 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
25 Here, because Plaintiff’s case is still in its preliminary screening stage, he has not
26 moved to proceed IFP, and it appears he has yet to effect service of a summons, his
27 complaint, or his motion upon any of the CDCR or RJD officials he names as parties, none
28 of them have actual notice of, and none has yet to enter an appearance in this case.
1 Therefore, the Court has no personal jurisdiction over any Defendant at this time. See Fed.
2 R. Civ. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727‒28.
3 Moreover, even if the Court had personal jurisdiction over the entities or persons
4 Plaintiff seeks to enjoin, he has failed to establish the imminent irreparable harm required
5 to support a preliminary injunction. See Winter, 555 U.S. at 20; All. for the Wild Rockies,
6 632 F.3d at 1131. To meet the “irreparable harm” requirement, Plaintiff must do more than
7 simply allege imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc.
8 v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires Plaintiff to demonstrate by
9 specific facts that there is a credible threat of immediate and irreparable harm. Fed. R. Civ.
10 P. 65(b). Mere “[s]peculative injury does not constitute irreparable injury sufficient to
11 warrant granting a preliminary injunction.” Caribbean Marine, 844 F.2d at 674‒75.
12 Plaintiff claims his ulcerative colitis subjects him to “mental anguish and emotional
13 distress” when he is required to double-cell because he must clean himself in front of his
14 cellmate and “deal[] with negative criticism and embarrassing scrutiny.” (See Doc. No. 2
15 at 2.) Plaintiff also admits, however, that after he refused a cellmate on August 25, 2025,
16 he was placed in solitary confinement. [See Doc. No. 1 at 3.] Thus, even if the Court had
17 the power to grant preliminary injunctive relief at this stage of the case, Plaintiff’s own
18 pleading belies any claim of immediate and irreparable injury—specifically at the hands of
19 a cellmate. See Fed. R. Civ. P. 65(b)(1); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir.
20 2001) (“[I]njunctive relief is ‘to be used sparingly, and only in a clear and plain case,’”
21 especially when the court is asked to enjoin the conduct of a state agency) (quoting Rizzo
22 v. Goode, 423 U.S. 362, 378 (1976)). A plaintiff seeking injunctive relief must show that
23 he “‘has sustained or is immediately in danger of sustaining some direct injury’ as the result
24 of the challenged official conduct and the injury or threat of injury must be both ‘real and
25 immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S.
26 95, 101–02 (1983) (citations omitted); see also Fly v. Diaz, No. CV-21-00506-TUC-SHR,
27 2023 WL 12069183, at *5 (D. Ariz. Mar. 1, 2023) (denying prisoner’s request for
28 injunctive relief in the form of single-cell placement based on her failure to show she
1 remained in cell with prisoner who assaulted her, that she would share a cell with that
2 prisoner in the future, or that her current cell mate posed a substantial risk of harm). Where
3 a plaintiff fails to demonstrate a likelihood of irreparable harm without preliminary relief,
4 the court need not address the remaining requirements necessary to warrant a preliminary
5 injunction. See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011).
6 For these reasons, Plaintiff’s motion for preliminary injunctive relief is DENIED.
7 See Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a
8 preliminary injunction is the exercise of a very far reaching power never to be indulged in
9 except in a case clearly warranting it.”).
10 III. CONCLUSION
11 Accordingly, the Court:
12 (1) DENIES Plaintiff’s Motion for Preliminary Injunction. [Doc. No. 2];
13 (2) DISMISSES this action without prejudice based on Plaintiff’s failure to pay
14 the $405 civil filing and administrative fee required by 28 U.S.C. § 1914(a) and his failure
15 to properly move to proceed IFP pursuant to 28 U.S.C. § 1915(a);
16 (3) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to
17 re-open this case by: (a) prepaying the entire $405 civil filing and administrative fee
18 required by 28 U.S.C. § 1914(a) in full; or (b) completing and filing a Motion and
19 Declaration in Support of Motion to Proceed IFP that complies with 28 U.S.C.
20 § 1915(a)(1), (2) and S.D. Cal. CivLR 3.2.b; and
21 (4) DIRECTS the Clerk of the Court to provide Plaintiff with a Court-approved
22 form “Motion and Declaration in Support of Motion to Proceed IFP” for his use and
23 convenience. Should Plaintiff neither pay the $405 filing fee in full nor sufficiently
24 complete and file the attached Motion and Declaration to Proceed IFP within 45 days, this
25 civil action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a), and
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1 without further Order of the Court.
2 IT IS SO ORDERED.
3 Dated: September 8, 2025
4 Hon. Cathy Ann Bencivengo
United States District Judge
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1 Plaintiff is cautioned that if he chooses to re-open the case by either prepaying the
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full $405 civil filing fee, or by submitting a properly supported motion to proceed IFP, his
15 complaint will be subject to an initial review and may be dismissed sua sponte pursuant to
28 U.S.C. § 1915A(b) and/or 28 U.S.C. § 1915(e)(2)(B), regardless of whether he pays the
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full filing fee at once, or is granted IFP status and is obligated to pay the full filing fee in
17 installments. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (noting
that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an
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in forma pauperis complaint that is frivolous, malicious, fails to state a claim, or seeks
19 damages from defendants who are immune); see also Rhodes v. Robinson, 621 F.3d 1002,
1004 (9th Cir. 2010) (discussing similar screening required by 28 U.S.C. § 1915A of all
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complaints filed by prisoners “seek[ing] redress from a governmental entity or officer or
21 employee of a governmental entity.”). The Court further notes that to the extent Plaintiff
admits he failed exhaust all available administrative remedies prior to filing, see Doc. No.
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1 at 6, his complaint may be also be subject to dismissal pursuant to 42 U.S.C. § 1997e(a).
23 See El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) (“Notwithstanding the fact
that failure to exhaust is an affirmative defense, a ‘complaint may be subject to dismissal
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[for failure to state a claim] when an affirmative defense . . . appears on its face.’”) (quoting
25 Jones v. Bock, 549 U.S. 199, 215 (2007)). “[T]he PLRA makes no provision for an
‘imminent danger’ or other emergency exception to its exhaustion requirements.” Hoffman
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v. Palagummi, 2019 WL 582353, at *4 (E.D. Cal. Feb. 13, 2019) (citing Booth v. Churner,
27 532 U.S. 731, 741 n.6, (2001) (noting that federal courts should not read futility or other
exceptions into the PLRA’s exhaustion requirement)); report and recommendation
28