Wagner v. Posner et al

Filing 91

ORDER signed by Magistrate Judge Kendall J. Newman on 8/11/11 ORDERING that within seven days of the date of this order, defendants shall file the further briefing described in this order. (Kastilahn, 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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CLINTON WAGNER,

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Plaintiff,

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No. 2: 09-cv-3166 KJM KJN P

vs.
MOSS POSNER, et al.,
Defendants.

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

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pursuant to 42 U.S.C. § 1983. On June 20, 2010, plaintiff filed a motion for a 270 day extension

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of time to file an opposition to defendants’ summary judgment motion. Also pending is

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plaintiff’s June 20, 2011 motion to modify the scheduling order.

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In both pending motions, plaintiff claims that when he was (apparently) recently

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placed in administrative segregation, correctional officers destroyed his complaint, exhibits and

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evidence related to this action. Plaintiff requests the 270 day extension of time so that he may

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recreate his legal files regarding this case.

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On June 30, 2011, the undersigned ordered defendants to inform the court of the

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status of plaintiff’s access to his legal materials related to this action within twenty-one days. On

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July 20, 2011, defendants filed a response to the June 30, 2011 order. Attached to defendants’
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response is the declaration of Correctional Officer Pina. (Dkt. No. 89-1.) Correctional Officer

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Pina is the legal officer in the administrative segregation unit at California State Prison-

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Sacramento, where plaintiff is incarcerated. He states that he is unaware of any complaints being

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made by plaintiff that any of his property has been destroyed. He states that plaintiff has filed

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inmate appeals in August 2010 relating to legal and property issues. These appeals were

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screened out for failing to comply with departmental regulations and no copies of the screened

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out appeals were retained.

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On August 4, 2011, plaintiff filed what he claims are responses to his grievances
regarding the confiscation/destruction of his legal property. These responses indicate that his

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grievances were returned to him for failing to comply with departmental regulations. For

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example, one appeal was returned to plaintiff because he failed to sign and date section B of the

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appeal. (Dkt. No. at 2.) Another appeal was returned to plaintiff because it was “obscured by

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pointless verbiage and voluminous unrelated documents.” (Id. at 3.)

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Also attached are appeals filed by plaintiff. In one, dated May 16, 2011, plaintiff

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contends that his appeals regarding destroyed property have not been responded to. (Dkt. 90 at

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4-5.) Plaintiff goes on to request that his appeals be processed. (Id. at 4.) Also attached are two

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property inventories dated December 24, 2010 and January 27, 2011. (Id. at 10-11.) In both,

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plaintiff appears to have marked out the section of the form listing his legal property. (Id.)

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Despite further briefing from both parties, it is still unclear what happened to

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plaintiff’s legal property. The undersigned could either grant plaintiff a lengthy extension of time

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so that he may recreate his files or conduct an evidentiary hearing in order to determine the status

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of his legal property. Neither of these options is attractive to either the undersigned or the

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parties.

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Accordingly, defendants are directed to file further briefing addressing the

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following issue: where is plaintiff’s legal property? If plaintiff’s legal property cannot be

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located, defendants shall address what happened to the legal property. Following receipt of this
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briefing, the undersigned will issue further orders.

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Accordingly, IT IS HEREBY ORDERED that within seven days of the date of

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this order, defendants shall file the further briefing described above.

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DATED: August 11, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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wag3166.ord

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