Elmore v. Flippo et al

Filing 18

ORDER Denying 17 Request for Judicial Notice signed by Magistrate Judge Gary S. Austin on 11/07/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONIE ELMORE,

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1:10-cv-01738-GSA-PC
Plaintiff,

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v.

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ORDER DENYING REQUEST FOR JUDICIAL
NOTICE
(Doc. 17.)

E. FLIPPO, et al.,

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Defendants.
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I.

RELEVANT PROCEDURAL HISTORY

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Tonie Elmore (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on September 2, 2010 at the United States District Court for the Central District of California.

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(Doc. 3.) On September 22, 2010, the case was transferred to the Eastern District of California.

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(Doc. 6.) The Court screened the Complaint under 28 U.S.C. § 1915A and issued an order on

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December 13, 2010, dismissing the Complaint with leave to amend. (Doc. 10.) On March 3, 2011,

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Plaintiff filed the First Amended Complaint. (Doc. 13.)

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On November 3, 2011, Plaintiff filed a Request for Judicial Notice, which is now before the

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Court. (Doc. 17.)

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II.

JUDICIAL NOTICE

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“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)

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generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
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ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.

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Evid. 201(b). “A court shall take judicial notice if requested by a party and supplied with the

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necessary information.” Fed. R. Evid. 201(d). The court may take judicial notice of court records.

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Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th

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Cir.), cert. denied, 454 U.S. 1126 (1981). “Judicial notice is an adjudicative device that alleviates

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the parties’ evidentiary duties at trial, serving as a substitute for the conventional method of taking

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evidence to establish facts.” York v. American Tel. & Tel. Co., 95 F.3d 948, 958 (10th Cir.

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1996)(internal quotations omitted); see General Elec. Capital Corp. v. Lease Resolution Corp., 128

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F.3d 1074, 1081 (7th Cir. 1997).

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In his Request, Plaintiff brings allegations that beginning on April 13, 2011, he was placed

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in Ad-Seg for three months on a bogus charge; his property was taken by correctional officers; and

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he has been unable to resolve these issues through the prison appeals process. Plaintiff submits

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forty-six pages of affidavits and other documentary evidence in support of his allegations. Plaintiff’s

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allegations are not appropriate for judicial notice, because they are subject to reasonable dispute.

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Moreover, the events recited by Plaintiff occurred long after the complaint for this action was filed,

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are not related to the allegations and claims in the complaint or amended complaint, and are not at

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issue in this action. Therefore, Plaintiff’s Request for Judicial Notice shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Request for Judicial

Notice is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
6i0kij

November 7, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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