Wagner v. Posner et al

Filing 97

ORDER signed by Magistrate Judge Kendall J. Newman on 9/20/11 DENYING AS MOOT 87 and 88 Motions; DIRECTING defendants to re-serve plaintiff with their summary judgment motion within 7 days of the date of this order and file proof of service; DIRE CTING the Clerk of Court to send plaintiff a copy of 43 amended complaint and copy of docket sheet; and ORDERING plaintiff to inform the court of the status of his access to his legal property within 14 days of the date of this order. (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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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 placed in

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administrative segregation, correctional officers destroyed some of his legal property related to

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this action. Plaintiff requests the 270 day extension of time so that he may recreate his files.

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The undersigned twice ordered defendants to file briefing addressing the status of

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plaintiff’s access to his legal materials. In their first response, defendants filed the declaration of

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Correctional Officer Pina, the legal officer in the administrative segregation unit at California

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State Prison-Sacramento, where plaintiff was incarcerated. In his declaration, Correctional
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Officer Pina stated that he was unaware of plaintiff filing any complaints regarding the

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destruction of legal property. In their second response, defendants again filed a declaration by

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Correctional Officer Pina. In this second declaration, Correctional Officer Pina states that on

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April 29, 2011, plaintiff had four boxes of stored legal property. On that date, plaintiff requested

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manilla folders, a dictionary, district court cases, manuscripts, all medical records and a

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restitution file folder. On that day, plaintiff was issued legal materials from his boxes of legal

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property. Plaintiff was provided numerous pieces of personal and legal paperwork, letters and

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envelopes, a dictionary, medical information, 602s, law library forms, 115s and blank papers.

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On May 13, 2011, plaintiff submitted another request for portions of his legal

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property. Plaintiff asked for a 1983 complaint and original summons along with legal cases for

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research. On May 31, 2011, staff looked for a 1983 summons and complaint packet but it could

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not be located. Plaintiff was apparently informed that those materials may have been in the box

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of legal materials that was issued to plaintiff on April 29, 2011.

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In his second declaration, Correctional Officer Pina states that plaintiff has access

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to all of his legal materials. Correctional Officer Pina states that because of plaintiff’s complaint

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that certain documents are missing, a search was conducted of all of his stored legal property.

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The claimed missing documents could not be located.

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On August 31, 2011, plaintiff filed a notice of change of address indicating that he

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has been transferred to Mule Creek State Prison. On September 9, 2011, plaintiff filed a motion

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stating that he has yet to receive copies of his medical file and copies of “all the docket files,

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from the original complaint to last docket that was filed up until today’s date.” Plaintiff requests

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the court’s assistance in obtaining these records.

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After reviewing the record, it is not clear what legal property regarding the instant

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case plaintiff is presently claiming he does not have access to. Prisoners often experience a delay

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in receiving access to their legal property after being transferred to a different prison. For this

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reason, plaintiff may have access to all of his legal property by the time he receives the instant
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order. In addition, plaintiff had access to four boxes of legal property while housed in

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administrative segregation at California State Prison-Sacramento. As discussed by Officer Pina

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in his second declaration, medical records were included in this legal property.

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Plaintiff is directed to inform the court within fourteen days whether he now has

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access to his legal property regarding this action. In order to expedite the resolution of this

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matter, the Clerk of the Court is directed to send plaintiff a copy of the operative amended

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complaint (Dkt. No. 43). The Clerk is also directed to serve plaintiff with a copy of the docket in

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this action. If, after reviewing the docket, plaintiff determines that he is missing documents from

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the court file that he requires in order to prepare his opposition to defendants’ motion, he shall

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inform the court which documents he requires. Defendants are also directed to re-serve plaintiff

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with their summary judgment motion.

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Also pending are plaintiff’s July 11, 2011 motion for access to the law library at

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California State Prison-Sacramento and motion to be allowed to store legal documents exceeding

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the amount allowed by California State Prison-Sacramento. Because plaintiff is no longer

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incarcerated at California State Prison-Sacramento, these motions are denied as moot. See

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Sample v. Borg, 870 F.2d 563 (9th Cir. 1989); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.

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1986). See also Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days of the date of this order, plaintiff shall inform the court of

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the status of his access to his legal property;

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2. The Clerk of the Court is directed to send plaintiff a copy of the amended
complaint (Dkt. No. 43) and a copy of the docket sheet for the instant action;

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3. Defendants are directed to re-serve plaintiff with their summary judgment

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motion within seven days of the date of this order and file proof of service;

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4. Plaintiff’s motion for access to the law library (Dkt. No. 87) and motion to

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store excess legal documents (Dkt. No. 88) are denied as moot.

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DATED: September 20, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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wag3166.lp

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