Mack v. Ona et al

Filing 198

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 05/07/13 recommending that plaintiff's motion for a temporary restraining order 193 and motion to stay 197 be denied. Motions 193 and 197 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY E. MACK,

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Plaintiff,

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No. 2:05-CV-2134-MCE-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

MARSHA ONA, et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a temporary restraining

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order (Doc. 193) and motion to stay these proceedings (Doc. 197).

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Plaintiff’s motion for temporary restraining order requests the court issue an order

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for injunctive relief against individuals who are not named as defendants in this action. Plaintiff

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is complaining that several prison staff have improperly confiscated his legal property and

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medical devises. However, none of the individuals involved in that alleged activity are

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defendants in this case. This court is unable to issue an order against individuals who are not

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parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

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100, 112 (1969). The request must, therefore, be denied.
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Plaintiff’s request for a stay of these proceedings similarly must be denied.

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Plaintiff is requesting the court enter an order staying these proceedings until such time as his

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request for temporary restraining order can be entered. As discussed above, no such order is

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appropriate. If plaintiff believes his property1 has been improperly confiscated, he may utilize

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the inmate grievance procedures at the prison, and/or file a separate action if he believes his

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constitutional rights have been violated. However, there are no grounds for staying these

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proceedings, and such a request must be denied.

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Based on the foregoing, the undersigned recommends that plaintiff’s motion for a
temporary restraining order (Doc. 193) and motion to stay (Doc. 197) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 7, 2013

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______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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In order to avoid additional issues in this matter, however, defense counsel may
consider inquiring as to plaintiff’s access to the documents necessary to proceed in this action.
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