West v. Dickinson

Filing 108

ORDER signed by Magistrate Judge Allison Claire on 06/25/13 denying 107 ex parte emergency notice and asking for help. All other pending motions will be addressed by separate order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MACK A. WEST, JR.,

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No. 2:09-cv-3147 KJM AC P

Petitioner,
v.

ORDER

KATHLEEN DICKINSON,

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Respondent.

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Petitioner proceeds pro se and in forma pauperis on his third amended petition for writ of

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habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondent has filed an answer, and petitioner

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has not yet filed a traverse. His motion for an extension of time to file the traverse, and related

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requests for a stay pending further exhaustion and for discovery, will be addressed by separate

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order. Here the court addressed plaintiff’s “Ex Parte Emergency Notice and Asking for Help”

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(ECF No. 107).

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Petitioner describes a series of incidents at his prison which took place on June 6, 2013,

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claiming in essence that prison officials used excessive force and injured petitioner. Petitioner

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claims that he will be found guilty of disciplinary charges on a “false report.” Petitioner also

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claims that he is being denied adequate medical treatment, and that his appeals are being screened

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out for “bogus reasons, making this process ineffective.” Petitioner writes:

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I am in need of some help and this is a notice so if you do not hear
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from me it is because these officers has further retaliated or I am
murdered by these officers.

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I have done nothing wrong and have witnesses to prove it but the
administration retaliates against inmates when we file 602/appeals,
or witness their wrongdoing, and come forward.

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Please do not dismiss my case if you do not hear from me.
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The following prison guards retaliation are not limited to: (1)
retaliatory false reports; (2) retaliatory body search and cell search;
(3) harassments; (4) excessive use of force or unnecessary use of
force; (5) illegal confiscating property personal and legal; (6) false
imprisonment; (7) murder; (8) retaliatory transfer; (9) spitting in a
inmate food; and more. . . .

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ECF No. 107 at 3.
Because plaintiff’s requests do not reach the merits of his underlying complaint, they may

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be resolved by order issued by the magistrate judge. See 28 U.S.C. § 636(b)(1)(A). See, e.g.,

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Reynaga v. Camisa, 971 F.2d 414 (9th Cir. 1992) (magistrate lacked authority to enter stay of

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action which was, in effect, involuntary dismissal); cf. United States Metals Roofing Co., 771

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F.2d 796, 801 (3d Cir. 1985) (orders which restrain or direct the conduct of the parties are not to

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be characterized as an appealable injunction beyond the authority of the magistrate judge unless

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the restraint goes to the merits of the action).
It is not at all clear what relief the petitioner is asking this court to order. The court’s

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jurisdiction in this action is over the warden in connection with petitioner’s habeas petition, and

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does not extend to the (largely unnamed) officers petitioner appears to identify as tortfeasors. To

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the extent that petitioner wishes to allege violations of his civil rights, he must do so in a separate

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action filed pursuant to 42 U.S.C. § 1983. Petitioner is specifically advised that his notice does

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not initiate any such action.

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Currently petitioner has other available remedies, and he only speculates that their

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exhaustion may be futile. As this court reads petitioner’s motion, petitioner has suffered no harm

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or prejudice in his prosecution of this habeas petition. Nor has petitioner suffered any apparent

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difficulty in communicating with the court, as he has filed (by the undersigned’s count) at least

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eight pleadings or notices in this action since his transfer to his current prison.

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Accordingly, petitioner’s “Ex Parte Emergency Notice and Asking for Help” (ECF No.
107) is denied. All other pending motions will be address by separate order.
IT IS SO ORDERED.
DATED: June 25, 2013
________________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:rb/west3147.ord(2)

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