IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 9, 2011
LEE V. QUILLAR, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On February 7, 2008, judgment was entered and this case was closed. On August 18, 2010, the Ninth Circuit Court of Appeals reversed judgment and remanded for consideration of plaintiff's request for expungement of certain disciplinary citations earned in prison for wearing an inappropriate beard as a remedy for a violation of rights arising under the Religious Land Use and Institutionalized Persons Act (RLUIPA).*fn1 Several matters are before the court.
I. Proper Defendant
Given the fact that the only relief plaintiff may obtain is injunctive relief in the form of expungement of prison disciplinary findings, the most appropriate defendant for this action appears to be the warden at plaintiff's place of incarceration sued in his or her official capacity. See Morris v. Newland, No. CIV-S-00-2794 GEB GGH P, 2007 WL 707525 at *8 (E.D. Cal. March 6, 2007) (appropriate defendant in case where prospective injunctive relief sought is official who could execute relief if ordered). Plaintiff names a warden as a defendant in his January 21, 2005, first amended complaint. The court assumes this is the warden at plaintiff's place of incarceration when plaintiff filed his first amended complaint. The court will substitute the warden at plaintiff's current place of incarceration, Folsom State Prison, as defendant pursuant to Federal Rule of Civil Procedure 25(d). The court will order the attorney assigned to represent the defendants in this case to inform the court within fourteen days whether he will accept service on behalf of the warden at Folsom. If counsel will not accept service, the court will order the warden served. The court will establish a scheduling order as soon as the warden appears.
The court notes that plaintiff filed a motion for substitution with respect to defendants Rowlett and Murray on February 25, 2011. Neither is the warden at plaintiff's current place of incarceration so plaintiff's request will be denied.
II. Plaintiff's February 17, 2011 "Motion For Expansion Of Preliminary Injunction . . ."
While it is not entirely clear, it appears plaintiff seeks a "preliminary injunction" or "temporary restraining order" from this court directing all California Department of Corrections and Rehabilitation employees to stop retaliating against plaintiff for filing prisoner grievances. However, the filing of prisoner grievances or any retaliation resulting therefrom are not in any way at issue with respect to the claim which is before the court. Further, the court does not have jurisdiction over all CDCR employees to enter the order plaintiff requests. If plaintiff seeks relief based upon a claim that he is being retaliated against for exercising protected rights, he should initiate a separate lawsuit.
III. Plaintiff's Motion For Partial Summary Judgment On February 14, 2011, plaintiff filed a motion seeking summary judgment against defendant
Mendoza on plaintiff's claims for damages arising under the First Amendment, the Fourteenth Amendment, and RLUIPA. As indicated above, judgment was entered in this case on February 7, 2008, which served as a final determination as to all of plaintiff's claims. Plaintiff appealed and the result of the appeal was the Ninth Circuit remanding for consideration of plaintiff's claim arising under RLUIPA for expungement of disciplinary records. No other claims were remanded so there are no other claims before the court.*fn2 Therefore, the court will recommend that plaintiff's motion for summary judgment be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. This action shall proceed with the Warden of Folsom State Prison, sued in his or her official capacity, as the only defendant. The attorney assigned to represent defendants in this case, Deputy Attorney General Gregory G. Gomez, shall inform the court within fourteen days whether he will accept service on behalf of the warden.
2. Plaintiff's February 25, 2011, motion for substitution with respect to defendants Rowlett and Murray is denied.
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's February 17, 2011, "Motion For Expansion Of Preliminary Injunction . . ." be denied; and
2. Plaintiff's February 14, 2011, "motion for partial summary judgment" be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).