Houston v. Knowles et al

Filing 91

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/31/11 DENYING 54 , 60 motions for provisional relief without prejudice. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN HOUSTON,

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Plaintiff,

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No. CIV S-09-0178 GEB EFB P

vs.
MIKE KNOWLES, et al.,

ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently before the court are plaintiff’s motions for provisional relief (Docket

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Nos. 54, 60), construed as motions for a protective order by the court on March 3, 2011 (Docket

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No.67), and defendants’ responses (Docket Nos. 75, 81).
In plaintiff’s “Request for Temporary Restraining Order” (Docket No. 54) and “Request

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for Court Intervention” (Docket No. 60), he alleges that he has been placed in Administrative

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Segregation and thereby separated from the legal materials he needs to litigate this and other

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cases. By order dated March 3, 2011, the court construed these requests as for a protective order

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directing defendant Dickinson, Warden of CMF-Vacaville, to provide him with his necessary

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legal materials. Dckt. No. 67 at 4. The court ordered counsel for defendants to inquire as to the

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status of plaintiff’s access to his legal materials and respond to plaintiff’s requests for a

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protective order. Id.

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In response to the order, defense counsel Mitchell Wrosch submitted a declaration stating

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that he spoke with Sergeant Rodriguez of the CMF-Vacaville Administrative Segregation Unit

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(“ASU”), who told him that plaintiff has no property restrictions but had not submitted any

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written request for his legal materials. Dckt. No. 75 at 2. Defense counsel also submitted a

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declaration from CMF-Vacaville Litigation Coordinator Jennifer Weaver stating that plaintiff

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has no property restrictions in ASU, but that, to obtain access to legal materials, an inmate in

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ASU must request them from the ASU property officer. Dckt. No. 75-1 at 2. Mr. Wrosch

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declares, “The one Property Officer assigned to ASU is presently on vacation. As soon as he

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returns, I will contact him to confirm that Plaintiff has not submitted a request for his legal

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material.” Dckt. No. 75 at 2.

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For his part, plaintiff states that he had never heard of a property request system in place

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at ASU until reading defendant’s response. Dckt. No. 77. Plaintiff was placed in ASU on

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January 21, 2011 and states that, during the last work week of January, he “asked each and every

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officer that walked past his cell . . ., stating ‘I have legal deadlines and I need my legal property’

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and there [sic] seemingly practiced response was either ‘that’s not my job’ or ‘talk to the

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property officer.’” Id. at 1. No one told plaintiff who the property officer was or how he could

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contact the property officer. Id. Plaintiff states that he filed an inmate appeal and even a state

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habeas corpus petition to complain of the denial of access to his legal property. Id. at 1-2.

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Plaintiff states that, as of March 24, 2011, he does not have access to his legal property. Id. at 2.

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He objects to any procedure that requires him to wait until the property officer returns from

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vacation. Id.

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On April 19, 2011, defendants submitted a supplemental response including a declaration

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from the ASU property officer, W. Dobos. Dckt. No. 81. Officer Dobos declares that plaintiff

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submitted a request for his legal property on March 24, 2011 and was provided the property on
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March 30, 2011. As it appears that plaintiff now has access to his legal materials, the court will

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deny his motions for provisional relief as moot.

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Accordingly, it is hereby ordered that plaintiff’s motions for provisional relief (Docket

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Nos. 54, 60) are denied without prejudice.

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Dated: May 31, 2011.

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