Blair v. CDCR et al

Filing 151

ORDER GRANTING 149 Request for Extension of Time; ORDER Requiring Defendants to Serve a Copy of the Pending Motion for Summary Judgment 130 and January 29, 2020 Findings and Recommendations 133 on Plaintiff; and ORDER DENYING AS MOOT 150 M otion for Preliminary Injunction signed by District Judge Dale A. Drozd on 9/4/2020. Plaintiff's Objections to Findings and Recommendations shall be due forty-five (45) days from the date on which the above-mentioned copies are served upon him. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY C. BLAIR,

No.: 1:14-cv-01156-NONE-SAB (PC)

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ORDER GRANTING REQUEST FOR
EXTENSION OF TIME, REQUIRING
DEFENDANTS TO SERVE A COPY OF THE
PENDING MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 130) AND JANUARY 29,
2020, FINDINGS AND RECOMMENDATIONS
(DOC. NO. 133) ON PLAINTIFF, AND DENYING
AS MOOT MOTION FOR PRELIMINARY
INJUNCTION

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FORTY-FIVE DAY DEADLINE

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(DOC. NO. 149, 150)

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Plaintiff,
v.
CDCR, et al.,
Defendants.

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Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Following the court’s screening of the second amended complaint and

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dismissal of claims that were not exhausted through the administrative remedy process, the case

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proceeded on plaintiff’s claims against Defendants Franco and O’Daniels for deliberate indifference

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(failure to protect); against Defendants Santos, Esqueda, and Ybarra for a due process violation; and

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against Defendant Johnson for retaliation. (See Doc. No. 133 at 1.)

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On October 14, 2019, defendants filed a motion for summary judgment as to those remaining

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claims. (Doc. No. 130.) Plaintiff did not timely file any opposition. On January 29, 2020, the

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assigned magistrate judge issued findings and recommendations recommending that defendants’
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motion for summary judgment be granted. (Doc. No. 133.) Those findings and recommendations
were served on the parties and contained notice that objections thereto were to be filed within twentyone (21) days. (Id.).
After receiving several extensions of time, plaintiff filed his objections on April 29, 2020.
(Doc. No. 143.) In those objections, plaintiff asserted that it would be unfair for the court to grant
defendants’ motion because plaintiff has not had sufficient access to his legal materials or to the law
library. (Doc. No. 143.) From the timeline plaintiff described in his objections, he was allegedly

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transferred to different prisons several times from late 2018 through early 2020. (See generally id.)
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Plaintiff’s assertions regarding lack of access to his legal materials span much of 2019 and early 2020,
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up through his transfer to his present institution of confinement in March 2020. (Id. at 2.) Plaintiff
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specifically asserted in his objections that as of late April 2020, he had yet to receive his legal
materials. (Id.) In light of those objections, the court issued a minute order requiring defendants to
file a statement “indicating whether they contend plaintiff has been provided with his legal materials
and, if so, when.” (Doc. No. 145.)
In response, defendants explained that as of May 29, 2020, plaintiff had been issued three
boxes of legal materials (the maximum number of boxes he is permitted to possess in his cell), with
two additional boxes stored elsewhere at the prison where plaintiff is currently incarcerated. (Doc.
No. 146.) According to defendants, plaintiff is permitted to exchange “one-for-one” the boxes of legal
materials he has in his cell with those in storage. (Id.) With regard to law library access, defendants

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indicated plaintiff had made no request for such access. (Id.) Because defendants’ response to the

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court’s order did not address whether plaintiff was provided access to his legal materials at the time

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his objections to the pending findings and recommendations were due, plaintiff was permitted thirty

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(30) days from July 10, 2020, to file his objections. (Doc. No. 147 at 2.) The court warned plaintiff

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that “[f]urther extensions of time . . . will not be granted absent a compelling showing of truly

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exceptional circumstances.” (Id.)

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By way of a document dated July 16, 2020, and received by the court August 12, 2020,

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plaintiff requested an additional thirty (30) days to respond to defendants’ motion for summary
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judgment. (Doc. No. 149.) Construing his filing liberally, plaintiff again describes the history of his
alleged problems accessing his legal materials due to his numerous transfers and specifically indicates
that two boxes of his personal property “including his legal documents” were “disposed of” along the
way. (Id. at 2.) In particular, he suggests that he has not had (and implies that he still does not have)
access to a copy of defendants’ motion for summary judgment. (Id. at 3.)

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Plaintiff has also filed a document styled as a motion for preliminary injunction that requests:
(1) another copy of the motion for summary judgment; and (2) access to the two boxes of legal

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material in storage at his current place of incarceration. (Doc. No. 150.)
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The court can find nothing in the record that definitively refutes plaintiffs’ assertion that he no

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longer has a copy of defendants’ pending motion for summary judgment. Therefore, in an abundance
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of caution, the court will order defendants to re-serve the entire motion and all its attachments (Doc.
Nos. 130–130-8), along with a copy of the January 29, 2020, findings and recommendations (Doc. No.
133), on plaintiff.
Defendants have already explained the “one-for-one” exchange procedure plaintiff must use to

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gain access to the two boxes of his legal materials that are in storage. Plaintiff does not suggest that he
has attempted to utilize this option or that any such attempt was unsuccessful. Accordingly, the court
will deny plaintiffs’ request for a court order requiring defendants to provide him with the two boxes
of his legal material that remain in storage.
CONCLUSION AND ORDER

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For the reasons set forth above:

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1. Defendants shall re-serve on plaintiff a copy of the entire pending motion for summary

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judgment and all of its attachments (Doc. Nos. 130–130-8), along with a copy of the

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January 29, 2020, findings and recommendations (Doc. No. 133);
2. Defendants shall thereafter file proof of service with the court;

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3. Plaintiff’s request for an extension of time (Doc. No. 149) is GRANTED; his

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objections to the January 29, 2020, findings and recommendations (Doc. 133) shall be

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due forty-five (45) days1 from the date on which the above-mentioned copies are served

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upon him; and

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4. Plaintiff’s additional request for an order requiring defendants to provide him with

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access to the two additional boxes of legal materials in storage at his current place of

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incarceration (Doc. No. 150) is denied.

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IT IS SO ORDERED.

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Dated:

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September 4, 2020
UNITED STATES DISTRICT JUDGE

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The court is affording plaintiff more time to respond than he requested to account for possible delays
in mail service due to the current public health crisis. Plaintiff is forewarned, however, that no further
requests for the extension of time will be entertained absent truly extraordinary and new
circumstances. In short, this is plaintiff’s final opportunity to file his objections, if any, to the pending
findings and recommendation which recommend that defendants’ motion for summary judgment in
their favor be granted.
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