Calloway v. Veal et al

Filing 116

FINDINGS and RECOMMENDATION, Recommending that Plaintiff's Motion for Transfer be Denied 115 , signed by Magistrate Judge Gary S. Austin on 10/17/13. Referred to Judge O'Neill; 20-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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vs.

1:08-cv-01896-LJO-GSA-PC
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR TRANSFER BE DENIED
(Doc. 115.)

M. VEAL, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY (20) DAYS

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I.

BACKGROUND

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Jamisi Jermaine Calloway (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on December 10, 2008. (Doc. 1.)

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On September 26, 2013, Plaintiff filed a motion to be transferred to another prison.

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(Doc. 115.)

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II.

MOTION FOR TRANSFER

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Plaintiff requests to be transferred out of the custody of Corcoran State Prison, where he

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is incarcerated, and away from treatment by Davita Inc. Health Care at the California Substance

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Abuse Treatment Facility, where he receives emergency medical care, to another facility,

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because he is being retaliated against by officers employed at both facilities. The Court lacks

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jurisdiction to issue an order requiring prison officials to transfer him based on retaliatory acts
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occurring after this action was filed, because the Court does not have such a case or

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controversy before it in this action.1 See Zepeda v. United States Immigration Service, 753

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F.2d 719, 727 (9th Cir. 1985); City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660,

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1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,

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Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982). Therefore, Plaintiff=s motion for

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transfer should be denied.

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III.

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CONCLUSION AND RECOMMENDATION
Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that

Plaintiff's motion for transfer be DENIED.

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These findings and recommendation are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l).

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TWENTY(20) days after being served with these findings and recommendation, any party may

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file written objections with the court. Such a document should be captioned "Objections to

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Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be

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served and filed within ten days after service of the objections. The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Within

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IT IS SO ORDERED.
Dated:

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October 17, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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This action proceeds on Plaintiff’s allegations of excessive force by defendants during an
incident occurring on May 2, 2008.
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