Quair v. Gertz

Filing 19

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/05/11 ordering plaintiff's 09/23/11 motion to stop all court proceedings 10 is denied; however, plaintiff may file a motion to voluntarily dismiss this action at any time. Plaintiff's 09/27/11 motion to stay 14 is denied as inapposite. Plaintiff's motion for ordering the U.S. Marshal to transport prisoner to a safe environment 18 is denied. (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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SAMMY R. QUAIR, SR.,

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Plaintiff,

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vs.

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No. CIV S-11-2293 CKD P

GERTZ, Sheriff,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42

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U.S.C. § 1983. He alleges that defendant failed to protect him from harm in violation of the

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Eighth Amendment. (Dkt. No. 1.)

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On September 23, 2011, plaintiff filed a “motion to stop all court proceedings,”

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asking the court to “[p]lease put a stop to all of my court proceedings” because “my incoming

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legal mail is coming into me [opened], read and then sent to me.” (Dkt. No. 10 at 1.)

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On September 27, 2011, plaintiff filed a “motion to stay,” asking the court to

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“please stop all court proceedings” in this case (and in a related case, not before the

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undersigned1) “until the U.S. Marshalls [sic] put a stop to this police retaliation and conspiracy.”

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Quair v. Honea et al., CIV S-11-2294 KJN (filed Aug. 29, 2011).
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On September 30, 2011, plaintiff filed an untitled motion claiming that he is

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experiencing retaliation as a result of his two pending lawsuits against four Butte County jail

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officers, fears for his “life and freedom,” and believes his legal mail is being tampered with. He

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asks the court to “order the United States Marshalls [sic] to come and get me out of here and into

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a safe environment. My life is in ‘immediate danger.’” (Dkt. No. 18.)

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Plaintiff is advised that there is no mechanism for “staying” a section 1983 action,

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as compared to the “stay and abeyance option” available in habeas corpus actions. See Kilgore v.

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Mandeville, 2011 WL 4048406 at *2 (E.D. Cal. 2011) (same), citing Rhines v. Weber, 544 U.S.

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269 (2005). This being so, it is not clear what type of relief the court can offer to “stop court

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proceedings.” The court has not yet screened the complaint pursuant to 28 U.S.C. § 1915A(a),

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determined whether plaintiff states a cognizable claim, or ordered service on defendant. If

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plaintiff would like to voluntarily dismiss his claims pursuant to Fed. R. Civ. P. 41(a), he may

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file papers so indicating. If not, the court will proceed to screen the complaint and order service

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on defendant if appropriate.

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Here, it appears that plaintiff seeks relief from alleged problems surrounding his

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participation in this action (i.e., mail tampering, retaliation) rather than outright dismissal of the

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action. He also seeks preliminary injunctive relief in the form of a transfer to a different

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institution. The purpose of a preliminary injunction is to preserve the status quo if the balance of

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equities so heavily favors the moving party that justice requires the court to intervene to secure

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the positions until the merits of the action are ultimately determined. University of Texas v.

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Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction is available to a plaintiff who

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“demonstrates either (1) a combination of probable success and the possibility of irreparable

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harm, or (2) that serious questions are raised and the balance of hardship tips in its favor.”

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Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). Under either

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approach the plaintiff “must demonstrate a significant threat of irreparable injury.” Id. Also, an

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injunction should not issue if the plaintiff “shows no chance of success on the merits.” Id. At a
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bare minimum, the plaintiff “must demonstrate a fair chance of success of the merits, or

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questions serious enough to require litigation.” Id.

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Plaintiff has not shown a chance of success on the merits because he seeks an

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injunction concerning matters outside the scope of his complaint, which concerns defendant

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Gertz’s alleged failure to protect plaintiff from “a violent criminal/undercover gang member.”

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To the extent that plaintiff is denied the resources necessary to have reasonable access to the

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courts, or is otherwise being harassed or retaliated against by jail officials, plaintiff must raise

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those claims in a separate lawsuit. He may not seek relief through a preliminary injunction in

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this action.

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Plaintiff does allege in the complaint that persons not named as defendants in this

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action refused to give plaintiff administrative grievance documents to support his federal civil

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rights claims. (Dkt. No. 1 at 5.) However, this court is unable to issue an order against

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individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine

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Research, Inc., 395 U.S. 100, 112 (1969). .

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s September 23, 2011 motion to stop all court proceedings (Dkt. No.

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10) is denied; however, plaintiff may file a motion to voluntarily dismiss this action at any time.

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2. Plaintiff’s September 27, 2011 motion to stay (Dkt. No. 14) is denied as
inapposite; and

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3. Plaintiff’s motion for ordering the U.S. Marshal to transport prisoner to a safe
environment (Dkt. No. 18) is denied.
Dated: October 5, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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quai2293.ord

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