Asberry v. Cate et al

Filing 154

ORDER signed by Magistrate Judge Kendall J. Newman on 4/25/14 ORDERING that within 14 days of the date of this order, the Warden of RJDCF shall inform the court of the status of plaintiffs missing legal property; the Clerk of the Court is direct ed to serve a copy of this order and plaintiffs April 18, 2014 motion on the Warden of the R.J. Donovan Correctional Facility; Clerk is directed to serve a copy of this order on Supervising Deputy Attorney General Monica Anderson. (cc Monica Anderson)(Dillon, M)

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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.,

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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 April 18, 2014 motion for a court

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order regarding legal materials. For the following reasons, pursuant to the All Writs Act, the

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Warden of the R.J. Donovan Correctional Facility (“RJDCF”) is directed to file a response to this

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motion.

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Plaintiff is housed at RJDCF. On May 24, 2013, plaintiff filed a motion for injunctive

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relief alleging that he was denied access to his legal materials related to the instant action.

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Plaintiff alleged that his legal materials were missing from his property that was packed and

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stored when he was placed in administrative segregation. Plaintiff suggested that the materials

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were confiscated in retaliation for his pursuit of the instant action.

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On July 10, 2013, the undersigned recommended that plaintiff’s May 24, 2013 motion for
injunctive relief be denied. In the findings and recommendations, the undersigned observed that
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no defendants were located at RJDCF. The court cannot order injunctive relief against

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

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

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U.S.C. § 1651(a) in order for officials at RJDCF to respond to plaintiff’s motion. The

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

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not demonstrated that his property was confiscated in retaliation for his pursuit of the instant

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action. The undersigned also noted that plaintiff’s claims regarding missing property were under

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investigation by officials at RJDCF. Plaintiff was advised that if he was dissatisfied with the

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results of the investigation, he could file another motion for appropriate relief. On September, 26,

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2013, the Honorable Kimberly J. Mueller adopted the July 10, 2013 findings and

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recommendations.

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On December 2, 2013, plaintiff filed another motion regarding his missing legal materials.

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In that motion, plaintiff alleged that on August 25, 2013, he mailed his Director’s Level appeal

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regarding the missing documents. Plaintiff alleged that the response to that grievance was due

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within sixty days. Plaintiff alleged that on October 14, 2013, he received a letter from J.D.

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Lozano stating that his Director’s Level Appeal was sent to prison officials at RJDCF with

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instructions to complete a second level review within 30 working days. Plaintiff alleged that this

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appeal would then go back to the Director’s Level of Review for another sixty days of review.

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Plaintiff alleged that the appeals process regarding his missing documents would not be complete

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until February or March 2014.

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On December 17, 2013, the undersigned denied plaintiff’s December 2, 2013 motion. The

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undersigned noted that the dispositive motion cut-off date was March 28, 2014. If plaintiff could

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not prepare a dispositive motion due to missing legal property, he could file an appropriate

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motion at that time.

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In the pending motion, plaintiff alleges that the administrative appeal process regarding

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his missing property is still not complete. Plaintiff alleges that on January 16, 2014, he

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resubmitted his Director’s Level Appeal regarding his missing property. Plaintiff alleges that he

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has yet to receive the response to his Director’s Level appeal.
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The administrative review process of plaintiff’s grievance regarding his missing legal

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property has gone on for a long time. Under these circumstances, requiring the Warden of

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RJDCF to respond to plaintiff’s claim regarding his missing legal property, pursuant to the All

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Writs Act, is appropriate. While plaintiff’s Director’s Level Appeal has apparently not been

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resolved, the court requests that the Warden inform the court of the status of plaintiff’s missing

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legal property, including information regarding the related investigation, regardless of the status

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of the administrative appeals process.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days of the date of this order, the Warden of RJDCF shall inform the
court of the status of plaintiff’s missing legal property;

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2. The Clerk of the Court is directed to serve a copy of this order and plaintiff’s April 18,

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2014 motion on the Warden of the R.J. Donovan Correctional Facility, P.O. Box

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799003, San Diego, California, 92179;

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3. The Clerk is directed to serve a copy of this order on Supervising Deputy Attorney

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General Monica Anderson.
Dated: April 25, 2014

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As2462.ord

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