Sims v. Lopez et al

Filing 44

ORDER Denying Plaintiff's 43 Motion for an Order to Show Cause, signed by Magistrate Judge Barbara A. McAuliffe on 10/11/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KELVIN SIMS,

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CASE NO. 1:10-cv–01409-BAM PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR AN ORDER TO SHOW CAUSE

v.
(ECF No. 43)

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SHERRY LOPEZ, et al.,
Defendants.
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Plaintiff Kelvin Sims is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed August

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6, 2010, against Defendant Lopez for retaliation in violation of the First Amendment and Defendants

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Akanno and Lopez for deliberate indifference to Plaintiff’s medical needs in violation of the Eighth

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Amendment and medical malpractice under state law. (ECF Nos. 22, 27.) On October 9, 2012, an

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order issued denying Plaintiff’s motions for an order to show cause and motion for a temporary

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restraining order. (ECF No. 42.) On the same date, Plaintiff filed a second motion for an order to

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show cause. (ECF No. 43.)

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In the motion for an order to show cause Plaintiff states that on September 9, 2012, prison

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officials at Salinas Valley State Prison (“SVSP”) confiscated his wheelchair at the request of

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Defendant Lopez to prevent Plaintiff from physical access to the law library. Plaintiff requests an

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order directing the Chief Medical Officer at SVSP to show cause why he is not allowed disability

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assistance in leaving his cell.

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The claims which are proceeding in this action involve incidents that occurred from 2007
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through 2010 while Plaintiff was housed at Kern Valley State Prison. Plaintiff was advised in the

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order issued on September 9, 2012, that he lacks standing in this action to seek an order remedying

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his current conditions of confinement at SVSP. Additionally, although Plaintiff alleges that his

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wheelchair was confiscated at the request of Defendant Lopez, there are no facts supporting such an

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accusation and Plaintiff’s conclusory allegation is not sufficient to confer jurisdiction to grant the

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relief requested. Plaintiff is advised that any further motions in this action seeking injunctive relief

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regarding Plaintiff’s conditions of confinement at SVSP shall be stricken from the record.

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IT IS SO ORDERED.
Dated:
10c20k

October 11, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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