McNeal v. Evert, et al

Filing 354

ORDER signed by District Judge Troy L. Nunley on 2/16/2019 DENYING 353 Motion requesting to be transported to trial in a van. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON MCNEAL,

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No. 2:05-cv-00441-TLN-EFB

Plaintiff,
v.

ORDER

EVERT, et al.,
Defendants.

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This matter is before the Court on Plaintiff Vernon McNeal’s (“Plaintiff”) Motion

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requesting to be transported to trial in a van. (ECF No. 353.) Plaintiff made a similar request in a

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motion filed June 18, 2018. (ECF No. 342.) Therein, Plaintiff asserted that he was previously

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transported to North Kern State Prison for a court date that did not occur, and that the

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unnecessary transport was done in retaliation for his pending lawsuits. (Id. at 2–4.) Plaintiff

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additionally claimed he has a preexisting back injury and that repeated bus rides cause further

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damage to that preexisting condition. (Id. at 4.) In his present Motion, Plaintiff maintains that his

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back is injured, and states he will refuse to take a bus to trial. (ECF No. 353 at 2.)

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Although the Court has the general authority to issue all writs necessary or appropriate in

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the furtherance of its jurisdiction (see 28 U.S.C. § 1651), decisions such as the housing and the

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mode of transportation of a prisoner are generally left to the purview of the CDCR. Indeed, such

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issues present security concerns that are better left to the judgment of prison officials. See, e.g.,
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Holleman v. Aramark Corp., No. 1:11-cv-323-TWP-DKL, 2013 WL 1403054 (S.D. Ind. April 5,

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2013) (“There is no doubt that transporting a prisoner . . . presents security issues. The court

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defers to the judgment of the prison officials in this context.”). Absent a showing of a

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constitutional or other legal violation, then, the Court is not inclined to interfere with the CDCR’s

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expertise.

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In the present case, Plaintiff has not established that transportation in a bus will cause him

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injury beyond vague allegations that he has a preexisting injury (see, e.g., ECF No. 342 at 4; ECF

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No. 353 at 2), nor has he shown how or why transportation in a van—as opposed to a bus—would

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prevent injury or the exacerbation of any preexisting injury. Of course, Plaintiff is free to file his

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request through the appropriate administrative avenues with the CDCR. And of course, CDCR

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officials cannot violate Plaintiff’s Eighth Amendment rights. But at this time Plaintiff has failed

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to establish that transportation by bus would violate his rights. Consequently, the Court finds no

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grounds to issue a writ ordering a specific mode of transportation and instead defers to the

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judgment of the CDCR in transporting Plaintiff for his February 25, 2019 trial.

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Plaintiff is cautioned that his refusal to appear for trial on February 25, 2019, if

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unwarranted, may result in the dismissal of his case for failure to prosecute under Fed. R. Civ.

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Pro. 41(b). See, e.g., Hernandez v. Whiting, 881 F.2d 768 (9th Cir. 1989).

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For the reasons set forth above, Plaintiff’s Motion (ECF No. 353) is DENIED.

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IT IS SO ORDERED.

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Dated: February 16, 2019

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Troy L. Nunley
United States District Judge

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