Wolinski v. McDonald et al

Filing 61

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/26/12 RECOMMENDING that plaintiffs requests and motions, to the extent they are motions for preliminary injunction or temporary restraining orders (Docs. 45 , 48 , 58 ) should be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, 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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KRZYSZTOF F. WOLINSKI,

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Plaintiff,

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vs.

FINDINGS AND RECOMMENDATIONS

MIKE D. McDONALD, et al.,

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Defendants.

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/

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No. CIV S-11-1932-GEB-CMK-P

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983.

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Plaintiff has filed several additional motions requesting the court order the return

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of his legal property and papers (Docs. 45, 48, 58). Essentially, plaintiff states he has been

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placed in administrative segregation without his legal property, and thus is unable to prosecute

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this case. He is requesting a court order directing the warden to return his legal documents so he

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has the ability to respond to the defendants’ motion to dismiss, which is now pending before the

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court.

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Plaintiff’s motions are the equivalent of additional motions for injunctive relief.

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His prior motions for such relief have been denied. As plaintiff has previously been informed,

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the court is unable to issue an order against individuals who are not parties to a suit pending

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before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).

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Plaintiff continues to request court orders directing the actions of the warden at High Desert State

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Prison. The warden is not a party to this action, and the court has no authority to require any

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such conduct.

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However, the undersigned will request defense counsel to inquire with the prison

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if there is anything that can be done to facilitate the return of plaintiff’s legal documents in order

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for this case to continue. If plaintiff is not in possession of the documents he needs to oppose the

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pending motion to dismiss, he will be unable to file a meaningful opposition to the motion, and

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the court will be unable to evaluate and rule on the motion. Therefore, in the interest of keeping

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this case moving forward, and resolving the motion to dismiss without additional delay, the

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undersigned is requesting the California Attorney General’s office to make what inquiry they

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deem appropriate, and assist plaintiff in obtaining his legal documents to the extent it may be

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done without risking institutional safety.

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Plaintiff has recently asked for and received additional time to file his opposition

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to the motion to dismiss. If plaintiff has still not received the documents he needs to file his

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opposition, and he determines he needs additional time to do so, he may file another request with

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the court.

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Based on the foregoing, the undersigned recommends that plaintiff’s requests and

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motions, to the extent they are motions for preliminary injunction or temporary restraining orders

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(Docs. 45, 48, 58) should 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: November 26, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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