Asberry v. Cate et al

Filing 120

ORDER signed by Judge Kimberly J. Mueller on 9/25/13 ADOPTING IN FULL 108 Findings and Recommendations; DENYING 103 Motion for Preliminary Injunction. The Clerk of the Court is DIRECTED to send plaintiff a copy of the docket sheet for this acti on; within 14 days of the date of this order, plaintiff shall mark those documents on the docket sheet he requires to prosecute this action and return it to the court; and this matter is REFERRED back to the magistrate judge for further proceedings. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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No. 2: 11-cv-2462 KJM KJN P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 10, 2013, the magistrate judge filed findings and recommendations, which were

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served on all parties and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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In his motion for injunctive relief, plaintiff alleged that his legal materials related to the

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instant action were missing from his property. Plaintiff suggested that the legal materials were

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confiscated in retaliation for his pursuit of the instant action.

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Pursuant to the All Writs Act, the magistrate judge directed the Warden at the R.J.

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Donovan Correctional Facility (“RJDCF”) to inform the court of the status of plaintiff’s access to
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his legal materials. On June 27, 2013, J. Morales, the Legal/Property Officer in Building 6 at

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RJDCF, filed a declaration stating there was no indication that any of plaintiff’s legal materials

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were lost or stolen. J. Morales went on to state that the RJDCF Appeals Office was investigating

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plaintiff’s claim that some of his legal materials were missing.

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The magistrate judge then found that plaintiff had not demonstrated that any official at

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RJDCF had confiscated his legal material in retaliation for his pursuit of the instant action. For

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this reason, and because his claim regarding missing legal materials was under investigation by

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RJDCF, the magistrate judge found that an order for injunctive relief pursuant to the All Writs

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Act was not warranted. The magistrate judge also advised plaintiff that if he was dissatisfied with

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the results of the investigation at its conclusion, he could file another motion for appropriate

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relief.

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In his objections to the findings and recommendations, filed July 22, 2013, plaintiff

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alleges that he is still missing his legal materials. He also includes statements suggesting that the

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investigation discussed in the findings and recommendations is not yet complete. In the

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meantime, it is still plaintiff’s duty to prosecute this action. To the extent certain missing items

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are court orders, the Clerk of the Court is directed to send plaintiff a copy of the court docket.

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Plaintiff may mark those documents he is missing that he believes he requires to prosecute this

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action and then return the docket to the court. The court will review the marked documents to

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plaintiff and determine if they are necessary for prosecution of this action. If they are, copies will

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be sent to plaintiff.

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Notwithstanding the foregoing, in accordance with the provisions of 28 U.S.C.

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§ 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case.

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Having carefully reviewed the file, the court finds the findings and recommendations to be

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supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 10, 2013, are adopted in full;

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2. Plaintiff’s motion for injunctive relief (ECF No. 103) is denied;

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3. The Clerk of the Court is directed to send plaintiff a copy of the docket sheet for this

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action; within fourteen days of the date of this order, plaintiff shall mark those documents on the

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docket sheet he requires to prosecute this action and return it to the court; and

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This matter is referred back to the magistrate judge for further proceedings.

DATED: September 25, 2013.

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UNITED STATES DISTRICT JUDGE

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