Garduno v. McDonald et al

Filing 46

ORDER signed by Magistrate Judge Allison Claire on 09/04/19 DENYING 44 Motion to stay his anticipated transfer to another prison. Plaintiff shall, within 14 days after service of this order, file the attached notice indicating whether he prefers to appear at the October 31, 2019 conference in person or byvideo, if available. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN GARDUNO,

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No. 2:15-cv-02370 MCE AC P

Plaintiff,
v.
MIKE MCDONALD, et al.,

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ORDER

Defendants.

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I.

Introduction

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Plaintiff is a state prisoner at Solano State Prison under the authority of the California

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Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. A settlement conference

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is scheduled in this case on October 31, 2019.

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Plaintiff has filed a “Motion to Stay Prison Transfer,” noting CDCR’s intent “to transfer

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Plaintiff from Solano State Prison to Pleasant Valley State Prison to work in the Offenders

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Mentor Certified Program (OMCP).” ECF No. 44 at 1. Plaintiff asks the court to stay his

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anticipated transfer because it may impede his settlement negotiations with defense counsel, and

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“[m]edically, additional transfers and extending the amount of time in transit, adds additional pain

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and suffering on Plaintiff and current medical status regarding back pain.” Id. at 2. Plaintiff also

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notes that his transfer will place additional burdens on state resources to transport him to a more
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distant settlement conference. Id. at 1-2. Accordingly, plaintiff seeks a “temporary stay of

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transfer pending the completion of the instant court proceedings after which [] Plaintiff welcomes

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the opportunity to transfer to institutions where he may appl[y] the trade that has been gifted him

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by the state.” Id. at 2.

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As explained below, the court has no authority to postpone plaintiff’s transfer to another

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California prison. However, in light of plaintiff’s medical concerns, he will be provided the

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option of requesting that he appear at the October 31, 2019 settlement conference by video.

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II.

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Plaintiff is informed that there is no legal authority supporting his efforts to postpone his

The Court Has No Authority to Postpone Plaintiff’s Anticipated Transfer

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transfer to another California prison. Prisoners have no due process right to placement in a

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particular correctional facility, or to prevent their transfer to other facilities. As explained by the

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Supreme Court:

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[G]iven a valid conviction, the criminal defendant has been
constitutionally deprived of his liberty to the extent that the State may
confine him and subject him to the rules of its prison system so long
as the conditions of confinement do not otherwise violate the
Constitution. The Constitution does not . . . guarantee that the
convicted prisoner will be placed in any particular prison. . . . The
initial decision to assign the convict to a particular institution is not
subject to audit under the Due Process Clause, although the degree
of confinement in one prison may be quite different from that in
another. The conviction has sufficiently extinguished the defendant’s
liberty interest to empower the State to confine him in any of its
prisons.

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Neither . . . does the Due Process Clause in and of itself protect a
duly convicted prisoner against transfer from one institution to
another within the state prison system. Confinement in any of the
State’s institutions is within the normal limits or range of custody
which the conviction has authorized the State to impose. That life in
one prison is much more disagreeable than in another does not in
itself signify that a Fourteenth Amendment liberty interest is
implicated when a prisoner is transferred to the institution with the
more severe rules.

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Meachum v. Fano, 427 U.S. 215, 224-5 (1976). For these reasons, plaintiff’s motion must be

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denied.

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III.

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The settlement conference scheduled for October 31, 2019 will be the second mediation in

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this case. The first conference was held on March 22, 2019, and plaintiff appeared by video at his

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request. See ECF No. 33. The pending settlement conference was scheduled without providing

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plaintiff the option of appearing by video. Plaintiff will now be provided that option. Plaintiff is

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directed to complete and file the attached notice within fourteen (14) days after service of this

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order, indicating whether he prefers to appear at the October 31, 2019 conference in person or by

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video, if available.1 If plaintiff chooses to proceed by videoconference, and the equipment is

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available, the court will re-issue the operative writ ad testificandum. If plaintiff does not timely

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Plaintiff May Request That He Appear at the Settlement Conference by Video

return the notice, the writ ad testificandum for his personal appearance will remain in effect.

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IV.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to stay his anticipated transfer to another prison, ECF No. 44, is

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Conclusion

denied.

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2. Plaintiff shall, within fourteen (14) days after service of this order, file the attached

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notice indicating whether he prefers to appear at the October 31, 2019 conference in person or by

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video, if available.

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SO ORDERED.
DATED: September 4, 2019

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The undersigned realizes that plaintiff is presently uncertain about his place of incarceration on
October 31, 2019 but, because advance arrangements must be made, the court is required to
obtain plaintiff’s preference at this time.
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN GARDUNO,

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No. 2:15-cv-02370 MCE AC P

Plaintiff,
v.
MIKE MCDONALD, et al.,

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NOTICE RE: PLAINTIFF’S APPEARANCE
AT THE OCTOBER 31, 2019
SETTLEMENT CONFERENCE

Defendants.

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As required by court order, the plaintiff notifies the court of the following election:

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_____ Plaintiff would like to participate in the settlement conference in person.
OR
_____ Plaintiff would like to participate in the settlement conference by video, if
available.

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____________________________________
Date

____________________________________
Plaintiff

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