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John Edward Mitchell v. J. Haviland

April 29, 2013

JOHN EDWARD MITCHELL, PLAINTIFF,
v.
J. HAVILAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel. This civil rights action is proceeding on plaintiff's claims that, while he was housed at California State Prison-Solano ("CSP-SOL"), defendant Rosario used excessive force on plaintiff on August 5, 2008, and that defendants Rosario, Garcia, and McGuire retaliated against plaintiff in early 2009. Plaintiff has filed two supplements to his complaint, a motion for temporary restraining order based on the supplemental complaint, a motion to dispense with the requirements of security, and a motion for appointment of counsel. Defendants filed a motion to strike plaintiff's supplemental complaint. The court will address these motions seriatim, but finds that defendants' motion to strike is granted, that plaintiff's motion for a temporary restraining order should be denied, and that plaintiff's remaining motions are denied.

II. Motion to Strike Supplemental Complaint

Plaintiff is presently housed at the California Substance Abuse Treatment Facility in Corcoran ("SATF"). On February 19, 2013, plaintiff filed a supplemental complaint seeking injunctive relief based on incidents that occurred at SATF in 2012, and at California State Prison, Corcoran ("CSP-COR") in 2010.*fn1 Both of these prisons are located within the jurisdiction of the Fresno Division of this court. Plaintiff claims "an ongoing, illegal practice by the defendants" (dkt. No. 61 at 1); however, none of the defendants listed in plaintiff's supplemental complaint are defendants Rosario, Garcia, or McGuire, and none of the allegations pertain to incidents that occurred at CSP-SOL.

In his statement of claim, plaintiff includes allegations pled in the instant action, but also includes allegations that are contained in an unidentified district court in case No. 12-2048 ABC (SH), in the Ninth Circuit Court of Appeals in 12-56316 (dkt. no. 61 at 3), and in the Fresno Division of this court in 1:11-cv-1205 JLT (religious diet claims arising at CSP-COR) (dkt. no. 61 at 8).

Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that: A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Id.

Plaintiff has not been granted leave to file a supplemental pleading in this 2009 case. Plaintiff has previously filed an amended complaint, and is therefore not allowed to amend the complaint as of right. Fed. R. Civ. P. 15(a)(1). Plaintiff's prior efforts to file supplemental pleadings were denied, and plaintiff was informed that he must proceed with one complaint in which all claims are pled. (Dkt. No. 15.) Moreover, unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see alsoFed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless both commonality and same transaction requirements are satisfied). As set forth above, there is no commonality between the allegations of the proposed supplemental complaint and the operative complaint herein. Thus, defendants' motion to strike plaintiff's supplemental complaint is granted, and plaintiff's supplemental complaints (dkt. nos. 61 and 69) are stricken. Because plaintiff interspersed unrelated claims within his supplemental complaint, the court will not order that the supplemental complaint be transferred to the Fresno Division. Rather, plaintiff must file separate complaints pertaining to incidents that occurred at CSP-COR and SATF, because the allegations do not pertain to the same transaction or share commonality.

For all of the above reasons, defendants' motion to strike is granted, and plaintiff's supplemental complaints are stricken.

III. Motion for Temporary Restraining Order

Plaintiff seeks a temporary restraining order against J. Beard, Director of the California Department of Corrections and Rehabilitation; Warden R. Diaz, SATF; J.D. Lozano, Chief of Appeals; C.M. Heck, and Lt. R.K. Williams. Plaintiff asks for a court order enjoining defendants from "entering plaintiff's assigned cell and removing any personal property . . . unless it is determined that it is stolen or poses a safety concern for staff or inmates," "refusing any religious special purchase items approved; restraining plaintiff based on unsubstantiated confidential information that has not been tested for 'reliability' before ...


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