In re: Michael Fries

Filing 13

ORDER Regarding Response by Supervising Deputy Attorney General; ORDER Directing Clerk of Court to Open New Case and Docket Filings, signed by Magistrate Judge Stanley A. Boone on 5/11/18. Appeal No: 18-70459. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IN RE:

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MICHAEL FRIES,

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No.: 1:17-mc-00064-SAB
APPEAL NO.: 18-70459
ORDER REGARDING RESPONSE BY
SUPERVISING DEPUTY ATTORNEY GENERAL
ORDER DIRECTING CLERK OF COURT TO
OPEN NEW CASE AND DOCKET FILINGS

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On December 14, 2017, the Court issued an order in this matter regarding Plaintiff Michael

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Fries’ assertions of continued difficulties in e-filing his complaint through the electronic case filing

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system at Kern Valley State Prison (“KVSP”) in Delano, California. The Court directed the Clerk of

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the Court to send Plaintiff’s complaint and application for leave to proceed in forma pauperis at issue

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in this matter to R. Tinsley, the Library Technical Assistant at KVSP. The Court then directed the

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Library Technical Assistant to submit Plaintiff’s complaint and application for filing to the United

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States District Court for the Eastern District of California, Fresno Division, pursuant to the applicable

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e-filing procedures. (ECF No. 9.)

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On December 15, 2017, the Clerk of the Court mailed the complaint and application to proceed

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in forma pauperis to the Library Technical Assistant at KVSP as directed, and a copy of the Court’s

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order was served on Plaintiff and the Supervising Deputy Attorney General. (Id.)
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The Court was then informed that Plaintiff filed a petition for writ of mandamus in the United

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States Court of Appeals for the Ninth Circuit, asserting that his case has not been opened. The Clerk of

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the United States District Court for the Eastern District of California also does not have records of

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Plaintiff’s case being opened in this Court. Consequently, on May 7, 2018, the Court directed the

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Supervising Deputy Attorney General in charge of the e-service program to respond to these issues.

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(ECF No. 11.)

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On May 9, 2018, the Court received a response by special appearance, with a declaration in

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support. (ECF No. 12.) The Office of the Attorney General responds that upon inquiry, it was

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informed that R. Tinsley, the Library Technical Assistant at KVSP, retired on October 4, 2017.

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Further, although there was a process in place to handle correspondence directed to R. Tinsley, there is

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not record or recollection of the receipt of the mail sent by the Clerk of the Court.

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Earlier in this case, the Office of the Attorney General relied upon a declaration submitted by

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R. Tinsley dated October 4, 2017, the same date of Tinsley’s retirement. (ECF No. 3-1.) Despite

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immediate service through CM/ECF of the Court’s December 14, 2017 order directing the e-filing of

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Plaintiff’s case, (ECF No. 9), the Court was not advised of any issues, nor was any relief sought from

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the Court’s order. Also, it appears that the order remains uncompiled with, and Plaintiff’s case has not

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yet been opened.

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The Court finds it appropriate to order immediate relief here, and will respectfully direct the
Clerk of Court to open Plaintiff’s case.

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Accordingly, it is HEREBY ORDERED that:

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The Clerk of Court is directed to open a new matter and file Plaintiff’s complaint, (ECF

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No. 1, at pp. 8-33), and his application for leave to proceed in forma paupers, (ECF No. 1, at pp. 41-

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46) in that matter. Plaintiff’s complaint and application shall be filed as of August 17, 2017, the date

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that his materials were provided to prison officials for mailing according to the proof of service filed.

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See Anthony v. Cambra, 236 F.3d 568, 574-75 (9h Cir. 2000) (under the “mailbox rule,” a pleading

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filed by a pro se prisoner is deemed filed as of the date the prisoner delivered it to prison authorities

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for mailing); (ECF No. 1, at p. 33);

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A copy of this order shall be filed in that new case matter; and
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3.

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The Clerk of the Court is further directed to serve a copy of this order on the Clerk of

the Court for the United States Court of Appeals for the Ninth Circuit in Appeal No. 18-70459.

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IT IS SO ORDERED.

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Dated:

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May 11, 2018
UNITED STATES MAGISTRATE JUDGE

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