Opinion
No. C08-5541 RJB/KLS.
October 5, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation of Magistrate Judge Karen L. Strombom (Dkt. 45), and Plaintiff's Motion to Retract TRO (Dkt. 47). The Court has considered the relevant documents and the remainder of the file herein.
On February 2, 2009, the Plaintiff filed an amended complaint alleging, among other things, that the Defendants violated his First and Eighth Amendment rights by denying him access to the courts, providing insufficient responses to his grievances, providing inadequate medical care and subjecting him to verbal and physical harassment. Dkt. 45 at 1-2. On August 6, 2009, the Plaintiff filed a motion requesting return of his property and for a preliminary injunction. Dkt. 45 at 2. Plaintiff alleges that on May 25, 2009, a staff member unnecessarily searched and then seized his gym bag and falsely accused him of having received the gym bag from an unidentified staff person. Id. Plaintiff also brings forth issues related to property confiscated during a search of bedroom in 2006, and to funds that were credited to his resident trust account. Id.
On September 15, 2009, Plaintiff filed a motion entitled "Opposition and Plaintiff's Motion to Retract Previously Filed (TRO) Injunction Under CSN. C08-5541, and File it as a Separate and Independent Action." Dkt. 43. The Court has considered the Plaintiff's filing as an objection to the Report and Recommendation. In the Plaintiff's motion, the Plaintiff disagrees with the findings in the Report and Recommendation and seeks to retract his previously filed TRO. Dkt. 46 at 1.
On September 28, 2009, the Defendants filed a response to the Plaintiff's motion stating that the motion was frivolous. Dkt. 47. The Defendants argue that if the Plaintiff did nothing more in response to the Report and Recommendation, that the Plaintiff could then file a separate action once the Report and Recommendation had been adopted. Dkt. 47 at 2. The Defendants also request the court to admonish the Plaintiff from filing baseless motions. Id.
The Court agrees with the Report and Recommendation and the Defendant's Response to Plaintiff's motion. The Plaintiff does not appear to disagree with the Report and Recommendation as he is voluntarily withdrawing his motion for TRO, and therefore, the Report and Recommendation should be adopted. The Court is also persuaded by Defendant's argument that whether adopting the Report and Recommendation or granting Plaintiff leave to withdraw his motion will have the same result. In the interest of judicial economy, the Court should adopt the Report and Recommendation and deny the Plaintiff's motion.
The Plaintiff is reminded that even though he is acting pro se in this matter, he is still bound by the Federal Rules of Civil Procedure and the Court's Local Rules. The Plaintiff is referred to Fed.R.Civ.P. Rule 11, which states in part:
By presenting to the court a pleading, written motion, or other paper . . . [the] unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
The Plaintiff is reminded that filing multiple motions or other documents of dubious legal merit may expose the Plaintiff to sanctions by the court.
For the foregoing reason, the Court does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation (Dkt. 45);
(2) Plaintiff's motion for temporary restraining order (Dkt. 43) is DENIED;
(3) Plaintiff's motion to retract previously filed temporary restraining order (Dkt. 46) is DENIED;
(4) The Clerk is directed to send a copy of the Plaintiff's temporary restraining order (Dkt. 43) to Plaintiff; and
(5) The Clerk is directed to send copies of this Order to Plaintiff, counsel for Defendants and to the Hon. Karen L. Strombom.