Hasan v. Johnson

Filing 76

ORDER Denying 66 Plaintiff's Renewed Motion for Court Assistance to Facilitate Communication with Inmate Witnesses, With Prejudice, signed by Magistrate Judge Gary S. Austin on 9/25/12. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAWWAAD HASAN,

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1:08-cv-00381-GSA-PC

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S RENEWED
MOTION FOR COURT ASSISTANCE TO
FACILITATE COMMUNICATION WITH
INMATE WITNESSES, WITH PREJUDICE
(Doc. 66.)

C/O JOHNSON,

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Defendant.
/

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I.

RELEVANT PROCEDURAL HISTORY

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Jawwaad Hasan

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(“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis. All parties to this action have

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voluntarily consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), and

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the case was assigned to the undersigned to conduct any and all further proceedings in the case,

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including the trial and entry of a final judgment. (Docs. 7, 14, 26.) This action now proceeds on

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Plaintiff’s original Complaint filed on March 17, 2008, against defendant Correctional Officer B.

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Johnson (“Defendant”) for use of excessive force in violation of the Eighth Amendment.1 (Doc. 1.)

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Discovery in this action is now closed, and the deadline for filing pretrial dispositive motions has

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On October 20, 2010, the Court dismissed the Doe defendants and Plaintiff's claim based on supervisory
liability from this action based on Plaintiff’s failure to state a claim. (Doc. 19.) On February 13, 2012, the Court
dismissed Plaintiff's state law claims from this action via Defendant's motion to dismiss. (Doc. 43.)

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expired. On May 15, 2012, Defendant filed a timely motion for summary judgment, which is now

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pending. (Doc. 52.)

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On April 6, 2012, Plaintiff filed a motion for Court assistance in communicating with his

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inmate witnesses who are housed at different correctional facilities. (Doc. 47.) On July 7, 2012, the

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Court denied the motion. (Doc. 62.) On August 10, 2012, Plaintiff renewed his motion for

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assistance by the Court to facilitate communication with his inmate witnesses. (Doc. 66.)

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Defendants have not filed an opposition.

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The Court treats Plaintiff's motion as a motion for reconsideration of the Court's order of July
7, 2012.
II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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to show “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff declares that on July 26, 2012, he had an interview with his prison counselor to

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request CDCR assistance to communicate with his inmate witnesses. Declaration of J. Hasan, Doc.

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67 ¶¶2-4. The counselor told Plaintiff that there are no regulations allowing inmate witnesses in civil
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actions to communicate unless they are related family members. Id. ¶5. Plaintiff showed the

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counselor the Court's previous order denying him Court assistance to facilitate communication with

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inmate witnesses. Id. ¶6. The counselor called the prison litigation office and was told that the kind

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of communication assistance Plaintiff is requesting has to be ordered by the Court. Id. ¶¶7-8.

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Plaintiff now renews his motion for Court assistance to communicate with his inmate witnesses.

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Discussion

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Plaintiff has provided evidence that he was informed by his counselor that there is no

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regulation addressing inmate witnesses in civil suits communicating with each other, and that the

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Court must order such communication. However, as Plaintiff was informed in the Court's previous

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order of July 7, 2012, the Court does not have jurisdiction in this action over anyone other than the

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Plaintiff and Defendant, and cannot direct prison officials to allow Plaintiff to correspond with his

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witnesses. E.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983);

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Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464,

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471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir.

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2006).

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Plaintiff’s motion must be denied. Plaintiff has not provided new grounds to grant his

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motion, shown that the Court committed clear error, or informed the Court of an intervening change

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in the controlling law. As discussed above, the Court does not have jurisdiction in this action to

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order prison officials to allow Plaintiff to correspond with his witnesses.

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Under title 15, California Code Regulations § 3139, inmates may initiate requests on CDC

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Form 1074 to correspond with other inmates by contacting their Correctional Counselor 1 (CCI).

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15 CCR § 3139(a) (West 2012). Plaintiff should work with his counselor to make a request on

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CDCR Form 1074. Plaintiff must follow procedures and use the available resources at the prison

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to obtain written authorization to contact his witnesses, with consideration by prison officials of

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safety, security, and procedural priorities.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff's renewed motion for Court assistance to facilitate communication with
inmate witnesses, filed on August 10, 2012, is DENIED, with prejudice; and

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The Court shall not consider any further motions for Court assistance to facilitate
Plaintiff's communication with his inmate witnesses.

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IT IS SO ORDERED.
Dated:
6i0kij

September 25, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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