Atcherley v. Clark et al

Filing 161

ORDER DENYING 124 Plaintiff's Motion to Compel CDCR to Permit Him to Take Photographs of His Knee signed by Magistrate Judge Dennis L. Beck on 11/11/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILBUR ATCHERLEY,

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Plaintiff,
v.

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CLARK, et al.,

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Defendants.

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Case No.: 1:12cv00225 LJO DLB (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
COMPEL CDCR TO PERMIT HIM TO TAKE
PHOTOGRAPHS OF HIS KNEE
(Document 124)

Plaintiff William Atcherley (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 28 U.S.C. § 1983. This action is proceeding on Plaintiff’s First
Amended Complaint, filed on March 14, 2013, for violation of the Eighth Amendment and negligence
against numerous Defendants.1 Pursuant to Court order, discovery was to be completed by September
29, 2014.

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On September 17, 2014, Plaintiff filed numerous motions to compel, including the instant
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motion. The motion originally requested an order to compel CDCR to photograph Plaintiff’s left

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knee, which is the subject of this action, prior to his upcoming knee replacement surgery.

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On September 10, 2014, the Court granted Plaintiff leave to file a Second Amended Complaint naming Doe Defendants.

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Defendants opposed the motion on October 8, 2014, and pointed out that the Court had already
denied this request when it denied Plaintiff’s motion to compel a response to an interrogatory
requesting a picture. ECF No. 119.

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Plaintiff filed a reply on October 8, 2014, and the motion is therefore deemed submitted
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pursuant to Local Rule 230(l).
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DISCUSSION
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In his reply, Plaintiff alters his request in response to Defendants’ opposition. Plaintiff

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explains that there is a camera in the visiting room that inmates can use, at their own expense, to take
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pictures of themselves and/or their family. Plaintiff states that his wife and daughter are approved to
visit him at Kern Valley State Prison, and he expects them to visit in the next 90 days.
Plaintiff states that he asked a Correctional Officer if he could use the camera to take pictures,

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and the officer said that he could. Plaintiff asked the officer if he could use the camera to take pictures
of his knee for litigation purposes, but the officer said that he could not. Plaintiff now seeks an order
compelling CDCR to permit him to use the camera to take pictures of his left knee, at his own
expense, when he has access to the camera during an upcoming visit.
Plaintiff believes that there is no reason to prohibit him from using the camera to photograph

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his left knee, other than the fact that prison officials are attempting to “keep [him] from gathering
evidence to prove [his] case.” ECF No. 145, at 2.
First and foremost, this Court does not have jurisdiction over anyone at CDCR other than

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Defendants, none of whom appear to be in a position to grant Plaintiff’s request. Second, it is not the
job of this Court, or Defendants, to assist Plaintiff in creating evidence to help him prove his case.
This is especially true where the requested relief would require the Court to interfere with prison
policies.
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Finally, the lack of photographic evidence of Plaintiff’s knee, in its current state, will not
necessarily be detrimental to his case.
Accordingly, Plaintiff’s motion is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

November 11, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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