Asberry v. Cate et al

Filing 136

ORDER signed by Magistrate Judge Kendall J. Newman on 12/16/13 DENYING without prejudice 135 Motion for legal materials. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TON ASBERRY,

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Plaintiff,

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

v.

ORDER

MATTHEW CATE, 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. Pending before the court is plaintiff’s December 2, 2013 motion for relief.

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Plaintiff alleges that he is being denied access to his legal materials. For the following reasons,

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this motion is denied without prejudice.

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Plaintiff is housed at the R.J. Donovan Correctional Facility (“RJDCF”). On May 24,

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2013, plaintiff filed a motion for injunctive relief alleging that he was being denied access to his

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legal materials related to the instant action. Plaintiff alleged that his legal materials were missing

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from his property that was packed and stored when he was placed in administrative segregation.

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Plaintiff suggested that the materials were confiscated in retaliation for his pursuit of the instant

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action.

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On July 10, 2013, the undersigned recommended that plaintiff’s May 24, 2013 motion for

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injunctive relief be denied. In the findings and recommendations, the undersigned observed that

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no defendants are located at RJDCF. The court cannot order injunctive relief against individuals

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

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Inc., 395 U.S. 100 (1969). The court would have to invoke the All Writs Act, 28 U.S.C § 1651(a)

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in order for officials at RJDCF to respond to plaintiff’s motion. The undersigned found that

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invocation of the All Writs Act was not appropriate because plaintiff had not demonstrated that

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his property was confiscated in retaliation for his pursuit of the instant action. The undersigned

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also noted that plaintiff’s claims regarding missing property were under investigation by officials

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at RJDCF. Plaintiff was advised that if he was dissatisfied with the results of the investigation, he

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could file another motion for appropriate relief.

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On September 26, 2013, the Honorable Kimberly J. Mueller adopted the July 10, 2013

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findings and recommendations. Judge Mueller ordered that to the extent certain missing items

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were documents contained in the court record, the Clerk of the Court was directed to send

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plaintiff a copy of the court docket. Judge Mueller ordered that plaintiff could mark those

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documents he was missing that he believed he required to prosecute this action and then return

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the docket to the court. Judge Mueller ordered that the court would review the documents marked

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by plaintiff and determine if they were necessary to prosecute this action. If found necessary,

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copies would be sent to plaintiff.

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Plaintiff did not return a copy of the court docket to the court requesting copies of
documents.

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In the pending motion, plaintiff complains that the investigation into his missing

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documents is still not complete. Plaintiff alleges that on August 25, 2013, he mailed his

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Director’s Level appeal regarding the missing documents. Plaintiff alleges that the response to

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this grievance was due within sixty days. Plaintiff alleges that on October 14, 2013, plaintiff

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received a letter from J.D. Lozano stating that his Director’s Level Appeal was sent to prison

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officials at RJDCF with instructions to complete a second level review within 30 working days.

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Plaintiff alleges that this appeal then goes back to the Director’s Level of Review for another
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sixty days of review. Plaintiff alleges that the appeal process regarding his missing documents

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will not be completed until February or March 2014.

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Discovery for plaintiff is closed. (See ECF No. 130.) The dispositive motion cut-off date

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is March 28, 2014. If plaintiff is unable to prepare a dispositive motion due to missing legal

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property, he may file an appropriate motion at the time of the dispositive motion cut-off date. If

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plaintiff is unable to respond to a dispositive motion due to missing legal property, he may file an

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appropriate motion in response to defendants’ dispositive motion. Any motion filed by plaintiff

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alleging denial of access to legal property should include all responses by prison officials to his

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grievances regarding missing legal property. Plaintiff should also identify the legal property he is

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missing that is required to either prepare or respond to a dispositive motion.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for legal materials (ECF

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No. 135) is denied without prejudice.

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Dated: December 16, 2013

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as2462.ll(2)

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