Windham v. Marin et al

Filing 97

ORDER Disregarding Plaintiff's Declaration in Opposition to Motion to Compel signed by Magistrate Judge Barbara A. McAuliffe on 03/01/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,

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Plaintiff,
v.
M. MARIN, et al.,

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Defendants.

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1:14-cv-01636-DAD-BAM (PC)
ORDER DISREGARDING PLAINTIFF’S
DECLARATION IN OPPOSITION TO
MOTION TO COMPEL
(ECF No. 96)

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Plaintiff Charles W. Windham (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s Eighth Amendment claims of excessive force against Defendants M. Marin, D. Uribe,

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W. Rasley, J. Contreras, A. Capano, R. Rubio, and Doe #1, and for deliberate indifference to

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serious medical needs against Defendants C. Navarro, V. Morales, M. Marin, and S. Shiver.

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On February 16, 2017, the Court issued an order granting in part and denying in part

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Defendants’ pending motion to compel Plaintiff’s responses to special interrogatories. As part of

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that order, the Court directed Defendants to serve and file written confirmation, within fourteen

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(14) days, that an additional inquiry had been made to determine whether Plaintiff had stored

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property in the units or facilities where he had been housed while at Corcoran State Prison. The

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order also directed Plaintiff, within thirty days, to serve supplemental responses, without

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objections, to certain of Defendants’ Special Interrogatories, Set One. (ECF No. 95).

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On February 27, 2017, Plaintiff filed a declaration in support of his responses/opposition

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to Defendants’ motion to compel special interrogatory responses. According to his declaration,

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Plaintiff submitted several CDCR-22 forms regarding his property and other matters. Plaintiff

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contends that the lack of responses evidences, amongst other things, deliberate obstruction and

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refusal to issue his property. Plaintiff requests that the Court order Defendants’ agents and

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friends to produce missing documents and exhibits. (ECF No. 96). In support, Plaintiff attaches

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the following exhibits to his declaration:
Exhibit A-1:

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A CDCR 22 form submitted to Corcoran State Prison’s litigation

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coordinator, M. Kimbrell. According to the CDCR 22 form, Plaintiff was transferred to Mule

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Creek State Prison on February 1, 2017, and the week prior he gave Correctional Officer Ramos

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his original declaration and exhibits for copying, but Correctional Officer Ramos failed to return

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the original declaration and exhibits. Plaintiff requests that M. Kimbrell send him the originals

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at Mule Creek State Prison. Plaintiff reports that the exhibits consisted of multiple CDCR 22

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forms and some 602s seeking his personal and legal property. Plaintiff now argues that because

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M. Kimbrell failed to respond to this CDCR 22 form in writing, the administrative appeals

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process is unavailable, futile, inadequate, defaulted and waived in full. Plaintiff further argues

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that “[t]hey wilfully trashed that evidence.” (ECF No. 96 at ¶ 5).
Exhibit A-2: A CDCR 22 form dated January 4, 2017, requesting Plaintiff’s property.

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The exhibit includes a response.

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Exhibit A-3: A CDCR 22 form dated May 21, 2015, requesting Plaintiff’s personal law

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books, legal files, court orders, formats, evidence, legal pads, court pleading paper, pens, stamps

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envelopes, correspondence, address books, etc. last in the custody of Correctional Officer C.

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Rodriguez in Facility 3B.

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Exhibit A-4: A CDCR 22 form dated June 1, 2015, indicating that Plaintiff was still

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waiting for (1) 3B01 in-cell property; (2) 3B gym stuff; (3) 3A04 property/TV; and (4) 3A03

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stuff.

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Exhibit A-5: A CDCR 22 form dated January 4, 2017, requesting that (1) Plaintiff be
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placed on the “NDS” list/status so that he could get NDS calls and property and (2) he receive an

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explanation as to why he was not automatically NDS upon ASU placement.

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Exhibit A-6: A CDCR 22 form dated January 9, 2017, indicating that Plaintiff was owed
indigent envelopes.

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Exhibit A-7: A CDCR 22 form dated August 5, 2014, regarding Plaintiff’s submission of

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appeals regarding property, a broken fan and UCC action. Plaintiff complained that he had not

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received a response to those appeals.

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Exhibit A-8: A CDCR 22 form dated September 21, 2014, requesting not only

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preservation of 3B yard and unit video surveillance for the week of September 11, 2014, but also

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an interview and an IAB investigation.

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The Court has reviewed Plaintiff’s declaration and supporting exhibits. To the extent

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Plaintiff has filed these items as a further opposition to Defendants’ motion to compel, the

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declaration and exhibits are unnecessary. The Court has issued an order resolving Defendants’

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pending motion to compel and a supplemental response is neither warranted nor authorized. See,

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e.g., Local Rule 231(l) (permitting a motion, opposition and reply). To the extent Plaintiff has

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filed these items as a further attempt to secure his property, the declaration and exhibits also are

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unnecessary. The Court has ordered Defendants to serve and file written confirmation that an

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additional inquiry has been made to determine whether Plaintiff has stored property in the units

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or facilities where he had been housed while at Corcoran State Prison. Additionally, the Court

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has ordered that if any property is located in storage, then Defendants must confirm if or when

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that property was transferred to CSP-Corcoran 3B Facility (or Plaintiff’s current housing

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assignment) to be issued to Plaintiff according to policy. (ECF No. 95 at 13).

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For these reasons, Plaintiff’s declaration and supporting exhibits are deemed unnecessary

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and are HEREBY DISREGARDED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

March 1, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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