King v. Holland et al

Filing 50

ORDER ADOPTING 42 Findings and Recommendations Regarding Denial of Request 39 for Order or Subpoena in Obtaining Affidavit Statement From Witness, signed by District Judge Dale A. Drozd on 8/8/17. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RASHAD KING,

12
13
14
15
16

No. 1:15-cv-01885-DAD-BAM
Plaintiff,

v.
S. HOLLAND et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DENIAL OF REQUEST FOR ORDER OR
SUBPOENA IN OBTAINING AFFIDAVIT
STATEMENT FROM WITNESS
(Doc. Nos. 39 & 42)

17
18
19

Plaintiff Rashad King is a state prisoner proceeding pro se and in forma pauperis in this

20

civil rights action under 42 U.S.C. § 1983. On May 2, 2017, the assigned magistrate judge issued

21

findings and recommendations addressing plaintiff’s request for an order or subpoena, which the

22

magistrate judge construed as a motion for preliminary injunction. (Doc. No. 42.) Therein, the

23

magistrate judge recommended that plaintiff’s motion be denied, and encouraged plaintiff to avail

24

himself of the process for requesting communications between inmates housed in separate

25

facilities set forth in § 3139(b) of Title 15 of the California Code of Regulations. That process

26

gives a warden the authority to evaluate an inmate’s request, taking into consideration safety and

27

security concerns under the circumstances. (See id. at 2–3.) The findings and recommendations

28

were served on the parties and contained notice that any objections thereto were to be filed within
1

1

fourteen days after service. (Id. at 3.) Plaintiff timely filed objections on May 15, 2017. (Doc.

2

No. 46.)

3

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a

4

de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s

5

objections, the court finds the findings and recommendations to be supported by the record and

6

by proper analysis.

7

In his objections, plaintiff contends that he has made numerous attempts to get a

8

correspondence approval, but has received no response. (See Doc. No. 46.) Plaintiff further

9

states that he is given “major hassles” from the counselor or prison officials, and his documents

10

are either deemed lost or disregarded. Thus, according to plaintiff, he has no way to demonstrate

11

or prove to the court that he has followed the prison procedures in requesting that he be allowed

12

to correspond with inmate Crawford. Plaintiff states an affidavit from inmate Crawford will

13

corroborate the allegations of his complaint and give him a better chance of prevailing on

14

summary judgment or at trial. Finally, plaintiff contends that he does not have time to use the

15

prison grievance system because that process is a lengthy one and does not a guarantee a result.

16

As an initial matter, the undersigned agrees with the assigned magistrate judge that this

17

court lacks the jurisdiction in this action over anyone other than the plaintiff and the defendants.

18

(See Doc. No. 42 at 2) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112

19

(1969). As such, the court cannot order the Warden M. E. Spearman to authorize plaintiff to

20

communicate with inmates incarcerated at other prisons as plaintiff requests. At most, the court

21

can seek the assistance of officials at the California Department of Corrections and Rehabilitation

22

if it were to find that plaintiff’s ability to litigate his claim was being hampered unnecessarily.

23

However, under the present circumstances of this case, the court declines to do so. Even if

24

plaintiff has adequately pursued the prison administrative procedures for seeking authorization to

25

communicate with inmates incarcerated at other prisons, he has not shown this court that any such

26

communications are necessary to prosecute this action. See, e.g., Bridges v. Hubbard, No. 2:09-

27

cv-00940-GEB-DAD, 2013 WL 1281781, at *2 (E.D. Cal. Mar. 26, 2013) (denying motion due to

28

failure to adequately demonstrate that any potential third-party inmate witnesses possessed
2

1

relevant evidence with regard to the case); Puckett v. Bailey, No. 1:10-cv-02145-LJO-GBC, 2012

2

WL 1196488, at *2 (E.D. Cal. Apr. 10, 2012) (denying plaintiff's motion to correspond with

3

inmate witnesses because he failed to show the prospective witnesses had relevant knowledge);

4

Tilei v. Wan, No. 1:06-cv-00776-OWW-GSA, 2011 WL 121552, at *7 (E.D. Cal. Jan.13, 2011)

5

(same). Here, plaintiff has not informed the court as to what specific evidence inmate Crawford

6

will provide regarding this case. Moreover, plaintiff’s argument concerning the lengthy nature of

7

the prison grievance process is also unpersuasive. As a result, the undersigned finds no basis on

8

which to reject the findings and recommendations.

9

Accordingly,

10

1. The May 2, 2017 findings and recommendations (Doc. No. 42) are adopted in full; and

11

2. Plaintiff’s request of order or subpoena in obtaining affidavit statement from witness

12
13
14

(Doc. No. 39), construed as a motion for a preliminary injunction is denied.
IT IS SO ORDERED.
Dated:

August 8, 2017
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3