(PC) Surrell v. CDCR Secretary of Operations ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALVON SURRELL, SR., No. 2:20-cv-00368-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 ROBERT BURTON, 15 Defendant. 16 17 Plaintiff Alvon Surrell, Sr. (“Plaintiff”), a state prisoner proceeding pro se, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 28, 2021, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. (ECF No. 45.) Neither 23 party has filed objections to the findings and recommendations. 24 The Court has reviewed the file under the applicable legal standards and finds the findings 25 and recommendations to be supported by the record and by the magistrate judge’s analysis. 26 A further review of the docket reveals that Plaintiff filed a second Motion for a Temporary 27 Restraining Order on April 20, 2021. (ECF No. 58.) The allegations in this motion involve non- 28 parties at a different prison and are therefore not relevant to the current proceeding. To the extent 1 Plaintiff attempts to connect these non-parties to the only Defendant in this action through 2 multiple and overlapping conspiracies, Plaintiff’s motion is unavailing because this case is not 3 proceeding on any purported conspiracy claim. Furthermore, Plaintiff was specifically advised 4 that a temporary restraining order is not an available remedy against non-parties, nor may it be 5 used to obtain a specific housing assignment while incarcerated. (See ECF No. 45 at 3 (citing 6 Meachum v. Fano, 427 U.S. 215 (1976); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985)).) 7 Rather than contest these legal conclusions by filing objections to the Findings and 8 Recommendations, Plaintiff filed a repetitious and frivolous motion requesting, in part, that he be 9 transferred to either a specific institutional housing unit or a residential program in San Francisco. 10 (ECF No. 58 at 4, 7.) 11 The Court finds Plaintiff’s filing of multiple consecutive motions is an abuse of the 12 judicial process and, as a result, hereby STRIKES the second motion from the docket.1 See 13 Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (emphasizing that 14 district courts have the inherent power to control their dockets). Moreover, peppering the Court 15 with motions that are unrelated to the pending matter in an effort to secure a prison transfer is an 16 abusive litigation tactic. 17 In light of Plaintiff’s conduct, the Court shall limit Plaintiff to filing one motion at a time. 18 No additional motions shall be filed by Plaintiff until the Court has ruled on the pending motion. 19 Plaintiff’s failure to comply with this Order shall result in any improperly filed pleadings being 20 stricken from the docket and sanctions being imposed upon Plaintiff. See Fed. R. Civ. P. 11 21 (allowing sanctions to be imposed for the filing of a pleading that is frivolous, legally 22 unreasonable, lacking in a factual foundation, or brought for an improper purpose); see also 23 24 1 Since the allegations in the motion do not relate to the Defendant in this case, Plaintiff may file the motion in a new civil suit after properly exhausting his administrative remedies. See 25 42 U.S.C. § 1997e(a) (stating that “[n]o action shall be brought with respect to prison conditions 26 under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are 27 exhausted.”). Furthermore, since the majority of the allegations in this motion concern events that occurred at Centinela State Prison located in Imperial County, California, venue for any such 28 action is proper in the Southern District of California. 1 | Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (explaining the standard for applying Rule 2 | 11 sanctions toa pro se party). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations filed January 28, 2021 (ECF No. 45), are 5 || ADOPTED IN FULL; 6 2. Plamtiff’s Motion for an Emergency Injunction (ECF No. 32) is DENIED; 7 3. Plaintiff’s second Motion fora Temporary Restraining Order (ECF No. 58) is 8 | STRICKEN fromthe docket for the reasons indicated herein; 9 4. Inlight of Plaintiff's filing of multiple duplicative motions, Plaintiff shall be limited to 10 | filing one motion at atime. No additional motions shall be filed by Plaintiff until the Court has 11 | ruled on the pending motion; and 12 5. Failure to comply with this Order shall result in any improperly filed pleading being 13 || stricken from the docket and sanctions being imposed upon Plaintiff for his failure to comply with 14 | a Court Order. 15 ITIS SO ORDERED. /) 16 | DATED: May 17, 2021 () jf 18 Troy L. Nunley ] 19 United States District Judge 20 21 22 23 24 25 26 27 28