Burgos v. Cate et al

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/1/2011 recommending that plaintiff's 13 14 15 24 motions for preliminary injunction be denied; motions referred to Judge Morrison C. England. Objections due within 14 days after being served with these findings and recommendations. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MANUEL BURGOS,

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Plaintiff,

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No. CIV S-09-3276-MCE-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

MATTHEW L. CATE, et al.,

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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 are several motions by plaintiff requesting

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preliminary injunction and protective orders (Docs. 13, 14, 15, 24).

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In this action, plaintiff claims deliberate indifference to his medical needs. He

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alleges the defendants have interfered with his medical treatment and prescribed unlimited ability

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to flush his toilet. The claims arose while he was housed at California State Prison - Solano

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(CSP-Solano), and all of the defendants to this action are employed at CSP-Solano. However, in

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April 2011, the court received notice that plaintiff had been transferred to Pleasant Valley State

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Prison (PVSP). It is clear from his recent filings that plaintiff is still located at PVSP.

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In his various motions for preliminary injunctive relief, plaintiff is requesting the

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court’s assistance in obtaining proper medical treatment, obtaining his required medical devices,

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and protecting his legal documents. However, none of the individual defendants in this action,

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whom the court may have jurisdiction over, are presently involved in either his medical care or

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have any power over his legal documents at his current institution. Rather, given his current

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housing situation, only persons who are not party to this action would have any control over

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plaintiff’s current situation, either medical or legal.

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This court is unable to issue an order against individuals who are not parties to a

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suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112

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(1969). In addition, where a prisoner is seeking injunctive relief with respect to conditions of

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confinement, the prisoner’s transfer to another prison renders the request for injunctive relief

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moot, unless there is some evidence of an expectation of being transferred back. See Prieser v.

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Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991)

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(per curiam). As there is no evidence of such an expectation here, plaintiff’s request must be

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denied.

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Based on the foregoing, the undersigned recommends that plaintiff’s motions for
preliminary injunction (Docs. 13, 14, 15, 24) 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: September 1, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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