Baker v. Perez et al

Filing 179

ORDER signed by Magistrate Judge Kendall J. Newman on 08/29/14 ordering plaintiff's motion to file supplemental information regarding his motion to compel 177 is granted. Plaintiff's motion for reconsideration 176 is granted as to pages 1-7 of HDSP Operational Procedure #744; defendant shall provide plaintiff with these pages within 21 days of the date of this order; plaintiff's motion for reconsideration is denied in all other respects. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BAKER,

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Plaintiff,

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No. 2: 09-cv-2757 MCE KJN P

v.

ORDER

PEREZ, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is set for trial before the Honorable Morrison C. England on

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January 5, 2015 as to the following claims: whether defendant Medina violated the Eighth

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Amendment and state law by failing to prescribe Tramadol to plaintiff upon his return to High

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Desert State Prison (“HDSP”) in November 2008.
On June 20, 2014, plaintiff filed a motion to compel prison officials at California State

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Prison-Corcoran (“Corcoran”) to return property allegedly confiscated from plaintiff’s cell. (ECF

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No. 170). On July 21, 2014, the undersigned denied this motion. (ECF No. 174.) On August 11,

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2014, plaintiff filed a motion for reconsideration, addressed to the undersigned, of the July 21,

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2014 order. (ECF No. 176.) For the following reasons, the motion for reconsideration is granted

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in part and denied in part.

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Standards For Motions To Reconsider
Although motions to reconsider are directed to the sound discretion of the court, Frito–

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Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C.Puerto Rico 1981), considerations of

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judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party

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seeking reconsideration of a court's order must brief the “new or different facts or circumstances

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[which] were not shown upon such prior motion, or what other grounds exist for the motion.” Id.

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The rule derives from the “law of the case” doctrine which provides that the decisions on legal

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issues made in a case “should be followed unless there is substantially different evidence ... new

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controlling authority, or the prior decision was clearly erroneous and would result in injustice.”

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Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner

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v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985).

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Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or

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amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the

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unsuccessful party to “rehash” arguments previously presented, or to present “contentions which

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might have been raised prior to the challenged judgment.” Costello v. United States, 765 F.Supp.

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1003, 1009 (C.D.Cal. 1991); see also F.D.I. C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986);

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Keyes v. National R.R. Passenger Corp., 766 F.Supp. 277, 280 (E.D.Pa. 1991). These holdings

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“reflect[ ] district courts' concerns for preserving dwindling resources and promoting judicial

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efficiency.” Costello, 765 F.Supp. at 1009.

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Discussion

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No defendants are located at Corcoran. This court is unable to issue an order against

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individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine

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Research, Inc., 395 U.S. 100, 112 (1969).

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However, under the All Writs Act, “all courts established by Act of Congress may issue

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all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the

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usages and principles of law.” 28 U.S.C. § 1651(a). It is “not a grant of plenary power to federal

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courts.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In appropriate

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circumstances, it may be used against people or entities not parties to the underlying litigation
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“who are in a position to frustrate ... the proper administration of justice.” United States v. New

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York Tel. Co., 434 U.S. 159, 174 (1977).

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Use of the All Writs Act is appropriate in cases where prison officials, not named as

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defendants, allegedly have taken action that impedes a prisoner’s ability to litigate his case. See,

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e.g., Turner v. Sacramento County Sheriff, No. 2: 09-cv-0017 WBS KJN P, 2010 WL 4237023, at

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*2 (Oct. 21, 2010), report and recommendation adopted by 2010 WL 5317331 (E.D.Cal. Dec.

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2010) (stating a writ might issue if plaintiff had shown that restricted access to his legal materials

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unreasonably denied him access to court); Johnson v. Sullivan, No. 1: 06-cv--01089 ALA P, 2008

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WL 5396614, at *7 (E.D. Cal. Dec. 23, 2008) (granting a request for injunctive relief directing

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CDCR to provide inmate calls with counsel based on showing that prison officials were depriving

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him of the ability to communicate with counsel).

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In the June 20, 2014 motion to compel, plaintiff alleged that prison officials at Corcoran

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wrongfully confiscated the following property from his cell: 1) Weinstein’s Evidence Manual; 2)

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Student Guide to Federal Rules of Civil Procedure; 3) Prisoner’s Self Help Litigation Manual; 4)

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California Prisoners Handbook; 5) Protecting Your Health and Safety; 6) Webster’s Dictionary

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and Thesaurus; 7) miscellaneous legal documents; 8) LEAF digital antenna and coax cable; 9)

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Sony ear buds; 10) Clear tunes power adapter for radio; 11) Coastline Community College

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Spanish Text Books; 12) Spanish/English Dictionary; and 13) insoles to Nike Shoes. (ECF No.

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170 at 4.)

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In the July 21, 2014 order, the undersigned found that plaintiff had not demonstrated that

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his ability to litigate this case was impeded as a result of not having access to the property

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allegedly confiscated. (ECF No. 174 at 2-3.) The undersigned found that plaintiff did not require

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any of the listed materials in order to proceed to trial. (Id.) In addition, while plaintiff generally

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alleged that he was missing exhibits, work product notes and trial and witness preparation

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documents, he did not specifically identify any of the missing exhibits. (Id.)

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In the pending request for reconsideration, plaintiff first argues that his ability to proceed

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to trial is impeded as a result of not having access to his law books. (ECF No. 176 at 2.) The

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undersigned again finds that plaintiff’s ability to proceed to trial is not impeded because he does
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not have access to the allegedly confiscated law books.

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Plaintiff also identifies several trial exhibits as having been confiscated. First, plaintiff

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alleges that he is missing pages 1-7 HDSP Operational Procedure # 744. Plaintiff alleges that

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defendant produced this document during discovery. (Id. at 2.)

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Because plaintiff is no longer housed at HDSP, he no longer has access to HDSP

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Operational Procedures. So that this matter may be resolved without further orders, defendant is

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directed to provide plaintiff with these missing pages from HDSP Operational Procedure # 744

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within twenty-one days.

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Plaintiff alleges that he is missing Inmate Medical Services Policies and Procedures

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(“IMSPP”) chapters 4, 8, 11, 16 and 25 from Volume 4. (Id. at 3.) Plaintiff alleges that he can

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obtain these documents from the law library at Corcoran. (Id.) Because plaintiff can obtain these

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documents from the law library at Corcoran, plaintiff’s request for reconsideration regarding

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these documents is denied.

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Plaintiff alleges that he is missing documents from his medical records. (Id.) Plaintiff

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alleges that he submitted a request to the Health Records Technician to obtain new copies of these

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missing documents. (Id.) On August 18, 2014, plaintiff filed a motion to supplement information

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regarding his motion to compel. (ECF No. 177.) In this motion, plaintiff states that on August 8,

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2014, he received copies of some of his allegedly confiscated medical records. (Id. at 2.)

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Because plaintiff is able to obtain copies of the documents from his medical records

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allegedly confiscated by Corcoran officials, plaintiff’s request for reconsideration regarding these

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documents is denied.

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Plaintiff also states that he has an envelope containing copies of 602 appeals and Progress

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notes identified as trial exhibits. (ECF No. 176 at 3.) Plaintiff alleges that the original 602

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appeals and Progress notes were confiscated. (Id.) Because plaintiff has copies of these

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documents, plaintiff’s motion for reconsideration regarding these documents is denied.

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Plaintiff alleges that he is missing trial and work product notes. (Id.) Plaintiff alleges that

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it would be difficult to recreate these documents due to inadequate law library access. (Id. at 4.)

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This jury trial in this action is approximately 4 months away. This is adequate time to recreate
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any missing trial and work product notes.
Plaintiff also claims that several of his pleadings previously filed with the court are

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missing. (Id. at 9.) Plaintiff identifies these pleadings by number: ECF Nos. 25, 27, 52, 54, 63,

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67, 71, 74, 75, 78, 83, 84, 88-90, 92, 96, 98, 114, 119, 120, 122, 124, 126-29, 131, 135-37, 143,

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145-47. (Id.)

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It does not appear that plaintiff requires all of these documents to proceed to trial. For

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example, ECF No. 25 is a motion for an extension of time to conduct discovery. Many of these

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documents are not relevant to the claims against defendant Medina which will proceed to trial.

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Plaintiff has not demonstrated that his ability to proceed to trial is impeded due to the alleged

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confiscation of the documents listed above. Copies of documents may be obtained by printing

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from the public terminals at the Clerk’s Office or by contacting Cal Legal Support Group at 3104

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“O” Street, Suite 291, Sacramento, CA, 95816, phone [phone].

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to file supplemental information regarding his motion to compel
(ECF No. 177) is granted;

2. Plaintiff’s motion for reconsideration (ECF No. 176) is granted as to pages 1-7 of

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HDSP Operational Procedure # 744; defendant shall provide plaintiff with these pages

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within twenty-one days of the date of this order; plaintiff’s motion for reconsideration

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is denied in all other respects.

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Dated: August 29, 2014

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Bak2757.req

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