Asberry v. Biter

Filing 68

ORDER GRANTING Request for Clarification; FINDINGS and RECOMMENDATION to Deny Motion to Have Meaningful Access to Court; Clerk to Send Copy of this Order to Litigation Coordinator at Plaintiff's Institution; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 9/19/2017. Referred to Judge Dale A. Drozd. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
TONY ASBERRY,

Case No. 1:16-cv-01741-DAD-MJS (PC)

11
Plaintiff,
12

ORDER GRANTING REQUEST FOR
CLARIFICATION

v.
13
C.RELEVANTE, et al.,
14

FINDINGS AND RECOMMENDATION
TO DENY MOTION TO HAVE
MEANINGFUL ACCESS TO COURT

Defendants.
15

(ECF NO. 59)

16

CLERK TO SEND COPY OF THIS
ORDER TO LITIGATION
COORDINATOR AT PLAINTIFF’S
INSTITUTION

17
18
19

FOURTEEN (14) DAY OBJECTION
DEADLINE

20
21
22
23
24
25
26
27
28

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on the
following claims: an Eighth Amendment claim for deliberate indifference to a serious
medical need against defendants Lozovoy and Relevante, an Eighth Amendment
conditions of confinement claim against defendants Ferris and Godfrey, and a First
Amendment retaliation claim against defendants Ferris and Godfrey.
Before the Court is Plaintiff’s August 25, 2017, “Motion to Have Meaningful

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Access to Court, to Conduct Discovery.” (ECF No. 59.) Plaintiff asks for clarification as
to whether he can begin discovery. He also requests assistance making copies of his
discovery requests, by way of a court order requiring the prison to provide him PLU
status or other assistance making copies, or some other means.
To the extent Plaintiff requests clarification of the Court’s discovery and
scheduling order, his request is granted. Pursuant to Federal Rule of Civil Procedure
26(d), Plaintiff is authorized by the Court’s discovery and scheduling order to engage in
discovery. Plaintiff is reminded that discovery closes on April 18, 2018, and he must
serve his discovery requests upon Defendants at least 45 days prior to that date. (See
ECF No. 53.)
To the extent Plaintiff requests court orders directed at officials at his present
institution, the Court reiterates the analysis it has provided Plaintiff in regard to other,
similar requests. (See ECF Nos. 62, 64.)
Federal courts are courts of limited jurisdiction. The pendency of this action does
not give the Court jurisdiction over prison officials in general or enable it to provide
relief that is not the subject of the operative complaint. Summers v. Earth Island
Institute, 555 U.S. 488, 492-93 (2009); Mayfield v. United States, 599 F.3d 964, 969
(9th Cir. 2010). The Court’s jurisdiction is limited to the parties in this action and to the
cognizable legal claims upon which the action proceeds. Summers, 555 U.S. at 491-93;
Mayfield, 599 F.3d at 969. A court should not issue an injunction when the relief sought
is not of the same character as that sought in the underlying action and the injunction
deals with a matter lying wholly outside the issues in the underlying action. De Beers
Consol. Mines v. U.S., 325 U.S. 212, 220 (1945). Moreover, while A[a] federal court
may issue an injunction if it has personal jurisdiction over the parties and subject matter
jurisdiction over the claim; it may not attempt to determine the rights of persons not
before the court.@ Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th
Cir. 1985) (emphasis added).

28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Here, Plaintiff’s claims concern his medical treatment and conditions of
confinement at Kern Valley State Prison. However, he now is housed at R.J. Donovan
Correctional Facility and is not in the custody of the named Defendants. It would not
appear that any Defendants could take any action with respect to Plaintiff’s ability to
make copies of his discovery requests. Furthermore, Plaintiff’s present requests are
outside the scope of the claims upon which the action proceeds. Plaintiff’s motion for
court orders directed at Donovan officials should be denied.
Nevertheless, the Court is cognizant that Plaintiff’s ability to access the law
library may impact his ability to timely and effectively litigate this action. Accordingly, the
Court will, by way of this order, request the assistance of the Litigation Coordinator at
Plaintiff’s institution in ensuring that Plaintiff is afforded adequate opportunities to
access the library, to the extent doing so is consistent with prison policies and
regulations, and institutional order and security. See Whitley v. Albers, 475 U.S. 312,
321-322 (1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970)). The Clerk’s Office
will be directed to serve a copy of this order on the Litigation Coordinator.
Based on the foregoing, Plaintiff’s request for clarification is HEREBY GRANTED
as stated herein. In all other respects, it is HEREBY RECOMMENDED that Plaintiff’s
“Motion to Have Meaningful Access to Court, to Conduct Discovery.” (ECF No. 59) be
DENIED.
The findings and recommendation are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with the findings and recommendation, any party
may file written objections with the Court and serve a copy on all parties. Such a
document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendation.” Any reply to the objections shall be served and filed within fourteen
(14) days after service of the objections. The parties are advised that failure to file
objections within the specified time may result in the waiver of rights on appeal.

28
3

1
2

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991)).

3
4
5 IT IS SO ORDERED.
6
7

Dated:

September 19, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4