Walker v. King et al

Filing 48

ORDER denying 46 Second Motion to Compel signed by Magistrate Judge Erica P. Grosjean on 7/27/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGER WALKER,

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Case No. 1:16-cv-01665-AWI-EPG (PC)
ORDER DENYING PLAINTIFF’S
SECOND MOTION TO COMPEL

Plaintiff,
v.

(ECF NO. 46)
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TIM POOLE, et al.,
Defendants.

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Roger Walker (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. § 1983.
On March 14, 2018, Plaintiff filed a motion to, among other things, compel DSH -

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Coalinga to return his legal materials. (ECF No. 27). On April 19, 2018, the Executive DSH -

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Coalinga responded by referring the Court to the declaration of Lieutenant Kenneth Bell of the

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CSP-Coalinga Department of Police Services. (ECF No. 31). According to Lieutenant Bell,

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Plaintiff was going to get access to his legal property approximately two weeks from April 19,

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2018. (Id. at 6-7). Based largely on Lieutenant Bell’s assertions, on May 10, 2018, the Court

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denied Plaintiff’s motion to compel. (ECF No. 32). However, the Court allowed Plaintiff re-file

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the motion to compel if he was still unable to access his legal property. (Id. at 2).

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On May 15, 2018, Plaintiff filed a motion for sanctions, alleging that he still did not have
access to his legal property. (ECF No. 33). Once again, the Executive Director responded by
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referring the Court to the declaration of Lieutenant Bell. (ECF No. 36). On June 18, 2018, the

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Court denied Plaintiff’s motion, in part because Lieutenant Bell asserted that an appointment to

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give Plaintiff access to his legal property was scheduled for June 14, 2018. (ECF No. 38, p. 2).

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However, the Court allowed Plaintiff to renew his motion for sanctions if Plaintiff’s property was

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not in fact made available to him. (Id. at 3).

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On June 25, 2018, Plaintiff filed a motion for compensation (that was not signed under

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penalty of perjury). (ECF No. 39). Plaintiff alleged that his legal property still had not been

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returned. As this issue has been ongoing and the deadlines have shifted repeatedly, the Court set

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a hearing on Plaintiff’s motion for compensation. (ECF No. 40). However, the Court stated that

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it would “vacate this hearing if, by July 9, 2018, Plaintiff’s legal property is made available to

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him, and a representative from Coalinga files a declaration confirming that Plaintiff’s legal

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property was made available to him.” (Id. at 3).

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On July 9, 2018, the Executive Director filed an opposition to Plaintiff’s motion for

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compensation. (ECF No. 44). The opposition included a declaration signed under penalty of

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perjury from Aaron Maylin, a Hospital Police Sergeant with DSH – Coalinga (id. at 5-6), as well

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as an Interdisciplinary Note dated June 14, 2018 (id. at 8). According to the declaration of

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Sergeant Maylin, on June 14, 2018, Plaintiff was given an opportunity to view his legal property

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that was on the flash drive of patient Tolles. (Id. at 6 & 8). Upon reviewing the contents,

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Plaintiff stated “I don’t need those. I already got those.” (Id.). A search of the flash drive was

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conducted for any other legal documents belonging to Plaintiff, and none were found. (Id.).

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As a representative from Coalinga filed a declaration confirming that Plaintiff’s legal

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property was made available to him, Plaintiff’s motion for compensation was denied and the

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hearing was vacated. (ECF No. 45).

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On July 18, 2018, Plaintiff filed a second motion to compel (ECF No. 46), which is now

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before the Court. Plaintiff alleges that a white flash drive was confiscated, and that this white

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flash drive contained legal materials. Plaintiff alleges that, while he did have a meeting with

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Sergeant Maylin, the white flash drive was not produced. Sergeant Maylin and other officers

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stated that they were aware of the white flash drive, but also stated they could not find it.
Lieutenant Kenneth Bell has submitted a declaration under penalty of perjury that officers

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searched for, but could not find, a white flash drive in Plaintiff’s property. (ECF No. 36, p. 5, ¶

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5). While Plaintiff alleges in his second motion to compel that his white flash drive was actually

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in the possession of Peter Tolles, Plaintiff’s motion also states that officers have told him that

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they could not locate a white flash drive, and it appears that officers have searched the property of

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Peter Tolles in an effort to find Plaintiff’s white flash drive (id.).

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The Court will deny Plaintiff’s Motion to Compel because the submitted evidence

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indicates that DSH-Coalinga has already searched for the material but cannot find it. The Court

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cannot require DSH-Coalinga to produce something it does not have.
Moreover, Plaintiff does not list the documents on the flash drive that are relevant to this

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case, or explain why he cannot get copies of those documents. Plaintiff does allege that his

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claims “are severely prejudiced” because he does not have access to his white flash drive, but he

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does not explain why.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s second motion to compel is
DENIED.

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IT IS SO ORDERED.
Dated:

July 27, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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