Tunstall v. Bodenhamer, et al.

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/6/2017 RECOMMENDING 31 , 32 , 33 , 35 , 39 , 40 , 41 , and 42 Motions for Injunction Relief be denied. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIAM TUNSTALL, Jr.,

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Plaintiff,

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No. 2:16-cv-2665 JAM DB P

v.

FINDINGS AND RECOMMENDATIONS

D. BODENHAMER,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action

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under 42 U.S.C. § 1983. Plaintiff alleges his cell at California State Prison – Sacramento (“CSP-

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Sac”) was not in compliance with the Americans with Disabilities Act (“ADA”) or with section

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504 of the Rehabilitation Act. Plaintiff is currently confined at California State Prison – Corcoran

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(“CSP-Corcoran”). Before the court are multiple motions for injunctive relief. For the reasons

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set forth below, the court recommends all motions be denied. Further, the court warns plaintiff

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that his continued filing of inappropriate and/or repetitive motions may result in dismissal of this

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action.

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BACKGROUND
In plaintiff’s original complaint, filed here on November 9, 2016, he alleged that his cell at

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CSP-Sac was not compliant with the ADA and RA. After plaintiff filed his original complaint on

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November 9, 2016, he moved to file an amended complaint. (ECF Nos. 1, 8.) In addition,
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plaintiff filed multiple motions asserting retaliation and lack of library access, and requesting the

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appointment of counsel. In an order filed May 18, 2017, the court instructed plaintiff on filing an

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amended complaint and gave him thirty days to do so. The court informed plaintiff that if he

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failed to file an amended complaint, this case would proceed on his original complaint. In

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addition, in the May 17 order, the court recommended denial of plaintiff’s five pending requests

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for injunctive relief. (ECF No. 12.) The district court adopted those recommendations. (ECF

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No. 18.)

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Plaintiff did not file an amended complaint, but in July and August 2017, he filed numerous

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additional motions for injunctive relief. In an order filed August 18, 2017, the court found

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plaintiff failed to state any cognizable claims under the ADA or RA and gave plaintiff the

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opportunity to amend his complaint.1 (ECF No. 29.) In findings and recommendations also filed

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on August 18, the court recommended denial of six of plaintiff’s motions for injunctive relief.

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(ECF No. 30.) With respect to plaintiff’s motions for access to the law library and legal

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materials, the court ordered a response from the California Attorney General about the status of

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plaintiff’s access to those materials and services. (Id. at 6.)

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Plaintiff also filed a motion to be placed in protective custody. (ECF No. 16.) The court
recommended denial of that motion as well. (ECF No. 17.)

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On September 7, 2017, Supervising Deputy Attorney General Monica Anderson specially

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appeared in this matter by filing a response to the court’s August 18 order. Based on Ms.

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Anderson’s filing, the court understands that plaintiff is housed in the Correctional Treatment

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Center (“CTC”) at CSP-Corcoran due to his medical status. (See Decl. of M. Kimbrell (ECF No.

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36-1) ¶ 3.) Based on his housing in CTC, plaintiff is not able to have physical access to the law

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library. Access is provided through the law library paging system. (Decl. of M. Lirones (ECF

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No. 36-2) ¶ 4.) Plaintiff may obtain legal materials, supplies, and photocopying through the

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paging system. (Id.) Plaintiff has used the paging system, but has refused to give library workers

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On September 11, 2017, plaintiff filed a first amended complaint. (ECF No. 37. ) The court
screens that complaint in a separate order.
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his legal documents for photocopying. (Id. ¶¶ 5, 6.) Plaintiff also stated in a filing that he

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refused to hand over his legal documents for photocopying. (ECF No. 42.)

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Since the court entered its August 18 findings and recommendations, plaintiff has filed eight

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unsolicited documents. He has also filed a response to Ms. Anderson’s filing. (ECF No. 43.) In

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most of his filings, plaintiff seeks court orders requiring CSP-Corcoran to provide him physical

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library access; to prevent “torture” in the form of cold food, bright lights, and lack of access to

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programs and services; to respond to his appeals; and to transfer him out of the CTC. (ECF Nos.

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32, 33, 34, 35, 39, 40, 41, 42, and 43.) In addition, plaintiff complains about a rules violation

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hearing which appears to have taken place when he was incarcerated at CSP-Sac, but also appears

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to bear no relationship to the subject matter of this case. (ECF No. 31.) Finally, plaintiff wants

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this court to provide him copies of his filings here. (ECF No. 35.)

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PLAINTIFF’S MOTIONS

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Most of plaintiff’s filings seek injunctive relief against officials at CSP-Corcoran. In the

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August 18 findings and recommendations, the court provided plaintiff the standards for injunctive

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relief and explained that plaintiff’s complaints against officials at CSP-Corcoran are not

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appropriate in this action. (ECF No. 30 at 4-6.) Those officials are not parties to this case and

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plaintiff’s complaints about his confinement at CSP-Corcoran are not related to his ADA/RA

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claims about his cell at CSP-Sac. Plaintiff newest motions for injunctive relief should be denied

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on this ground as well.

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Previously, the court inquired about plaintiff’s ability to access the law library. As set out

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above, Ms. Anderson’s filing makes clear that plaintiff has access to the law library, supplies, and

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photocopying through the paging system. Pursuant to § 3123 of the California Code of

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Regulations, an inmate who is “under restricted movement due to his or her medical status” may

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be limited to “law library paging for access to legal materials.” Plaintiff is housed in the CTC

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section of the prison due to his medical condition. Inmates housed in the CTC section may obtain

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legal supplies, such as paper, law library materials, and copying services through the paging

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system. Plaintiff has apparently used this system, but has refused to have his legal documents

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taken away to be copied.
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Plaintiff does not explain why the paging system is inadequate to allow him to access the

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library, legal supplies, and copying services for purposes of proceeding in this case. To the extent

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plaintiff contends the paging system is inadequate to protect his rights in other cases, that

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question will not be addressed in this proceeding. As explained above, plaintiff’s complaints

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about his treatment at CSP-Corcoran are not relevant to this suit, which is limited to his ADA/RA

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claims regarding his incarceration at CSP-Sac. Accordingly, the court finds no basis to order the

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prison to provide plaintiff physical access to the library, additional supplies, or access to a

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photocopier.

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With respect to plaintiff’s request for copies from this court, plaintiff is advised that the clerk

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does not ordinarily provide free copies of case documents to parties. In forma pauperis status

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does not include the cost of copies. The Clerk's Office will provide copies of documents and of

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the docket sheet at $0.50 per page. Checks in the exact amount are made payable to "Clerk,

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USDC." Copies of documents in cases may also be obtained by printing from the public

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terminals at the Clerk's Office or by contacting Cal Legal Support Group at: 3104 "O" Street,

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Suite 291, Sacramento, CA 95816, phone [phone], fax [phone].

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Finally, plaintiff is warned that he cannot continue his stream of filings in this case without

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consequences. Since he filed his original complaint less than a year ago, plaintiff has filed more

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than twenty motions and notices in this case. None of those motions have been successful and

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plaintiff has repeated the same requests for relief multiple times. Under Federal Rule of Civil

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Procedure 11(b), a prisoner’s claims are considered frivolous if they “merely repeat[] pending or

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previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995)

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(quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988)). Sanctions for violation of Rule

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11(b) may include dismissal of the plaintiff’s case. See Bell v. Harrington, No. 1:12-cv-0349-

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LJO-GBC (PC), 2012 WL 893815, *9 (E.D. Cal. Mar. 15, 2012). Plaintiff is advised that further

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motions for injunctive relief directed to officials at CSP-Corcoran will likely result in a

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recommendation that this action be dismissed.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff’s motions for
injunctive relief (ECF Nos. 31, 32, 33, 35, 39, 40, 41, and 42) be denied.
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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: October 6, 2017

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